Senate Hearing, 106TH Congress - Former U.S. World War Ii Pow's: A Struggle For Justice

S. HRG.
106585
FORMER U.S. WORLD WAR II POWS:

A STRUGGLE FOR JUSTICE
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
DETERMINING WHETHER THOSE WHO PROFITED FROM THE FORCED

LABOR OF AMERICAN WORLD WAR II PRISONERS OF WAR ONCE
HELD AND FORCED INTO LABOR FOR PRIVATE JAPANESE COMPANIES
HAVE AN OBLIGATION TO REMEDY THEIR WRONGS AND WHETHER
THE UNITED STATES CAN HELP FACILITATE AN APPROPRIATE RESO-
LUTION
JUNE 28, 2000
Serial No. J10694
Printed for the use of the Committee on the Judiciary
(
U.S. GOVERNMENT PRINTING OFFICE
65766 CC WASHINGTON : 2000
VerDate 11-MAY-2000 11:27 Aug 01, 2000 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 POW SJUD4 PsN: SJUD4
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, JR., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DEWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
MANUS COONEY, Chief Counsel and Staff Director
BRUCE A. COHEN, Minority Chief Counsel
(II)
CONTENTS
STATEMENTS OF COMMITTEE MEMBERS

Hatch, Hon. Orrin G., U.S. Senator from the State of Utah ................................ 1
Feinstein, Hon. Dianne, U.S. Senator from the State of California .................... 5
Grassley, Hon. Charles E., U.S. Senator from the State of Iowa ........................ 22
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont ....................... 23
CHRONOLOGICAL LIST OF WITNESSES

Statement of Hon. Jeff Bingaman, U.S. Senator from the State
of New Mexico ...................................................................................................... 3
Panel consisting of David W. Ogden, Acting Assistant Attorney General,
Civil Division, U.S. Department of Justice, Washington, DC; and Ronald
J. Bettauer, Deputy Legal Adviser, Department of State, Washington,
DC ......................................................................................................................... 6
Panel consisting of Harold W. Poole, former World War II prisoner of war
in Japan, Salt Lake City, UT; Frank Bigelow, former World War II prisoner
of war in Japan, Brooksville, FL; Maurice Mazer, former World War II
prisoner of war in Japan, Boca Raton, FL; Lester I. Tenney, former World
War II prisoner of war in Japan, LaJolla, CA; Edward Jackfert, former
World War II prisoner of war in Japan, and commander, American Defend-
ers of Bataan and Corregidor, Inc., Wellsburg, WV; and Harold G. Maier,
professor of law, Vanderbilt University, Nashville, TN .................................... 28
ALPHABETICAL LIST AND MATERIALS SUBMITTED

Bettauer, Ronald J.:
Testimony .......................................................................................................... 10
Prepared statement .......................................................................................... 14
Bigelow, Frank: Testimony ..................................................................................... 31
Bingaman, Hon. Jeff: Testimony ............................................................................ 3
Jackfert, Edward: Testimony .................................................................................. 35
Maier, Harold G.:
Testimony .......................................................................................................... 38
Mazer, Maurice: Testimony .................................................................................... 32
Ogden, David W.:
Testimony .......................................................................................................... 6
Poole, Harold W.:
Testimony .......................................................................................................... 28
Tenney, Lester I.: Testimony .................................................................................. 33
APPENDIX
QUESTIONS AND ANSWERS

Responses to questions of Senator Hatch from:
The Department of Justice .............................................................................. 47
Ronald J. Bettauer ........................................................................................... 53
ADDITIONAL SUBMISSIONS FOR THE RECORD

Text of e-mail message to Senator Hatch from Rabbi Abraham Cooper of
the Simon Wiesenthal Center, Berlin, Germany, dated June 26, 2000 ........... 55
(III)
IV
Page
Prepared statements of:
Bruce R. Harder, director, National Security and Foreign Affairs, Veter-
ans of Foreign Wars of the United States .................................................. 55
Linda G. Holmes ............................................................................................... 56
Chalmers Johnson ............................................................................................ 59
Prime Minister Tomiichi Murayama, dated Aug. 15, 1995 ........................... 61
Michael D. Ramsey ........................................................................................... 61
Paul W. Reuter ................................................................................................. 65
John M. Rogers ................................................................................................. 67
Joseph A. Violante ............................................................................................ 72
Letters to:
Senator Hatch from Edward Jackfert, past national commander, Amer-
ican Defenders of Bataan & Corregidor, Inc., dated June 20, 2000 ......... 73
Stuart Eizenstat, Deputy Secretary of the U.S. Treasury, from Michael
Engelberg, M.D., the American Center for Civil Justice, dated June
10, 2000 .......................................................................................................... 74
Hiroaki Yano, president, Mitsubishi International Corp., from Michael
13, 2000 .......................................................................................................... 74
Hiroshi Noda, Kawasaki Heavy Industries U.S.A.), Inc., from Michael
13, 2000 .......................................................................................................... 75
Senator Hatch from Michael M. Honda, California State Legislature,
dated June 30, 2000 ...................................................................................... 75
Senator Hatch from Gilbert M. Hair, executive director, the Center for
Internee Rights, Inc., dated June 22, 2000 ................................................. 76
Chart: Information on U.S. POWs held in World War II ...................... 78
Senator Hatch from John E. Julian, first selectman, Office of Selectman,
State of Connecticut ...................................................................................... 79
Senator Hatch from John F. Sommers, Jr., executive director, the Amer-
ican Legion, dated June 27, 2000 ................................................................ 79
Senator Hatch from Charles L. Taylor, AMVETS national commander,
dated June 26, 2000 ...................................................................................... 80
Senator Hatch from Bob Weygand, Member of Congress, House of Rep-
resentatives, dated June 23, 2000 ............................................................... 80
Senator Hatch from Frank G. Wickersham, III, national legislative direc-
tor, Military Order of the Purple Heart, dated June 23, 2000 .................. 81
FORMER U.S. WORLD WAR II POWS:
A STRUGGLE FOR JUSTICE
WEDNESDAY, JUNE 28, 2000
U.S. SENATE,
COMMITTEE
JUDICIARY, ON THE
Washington, DC.
The committee met, pursuant to notice, at 10:33 a.m., in room
SD226, Dirksen Senate Office Building, Hon. Orrin G. Hatch
(chairman of the committee) presiding.
Also present: Senators Grassley, Sessions, and Feinstein.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S.
SENATOR FROM THE STATE OF UTAH
The CHAIRMAN. I am pleased today to welcome a distinguished
group of witnesses to enlighten the committee on a very important
issue, namely the struggle for compensation of American POWs
once held and forced into labor by and for private Japanese compa-
nies.
I apologize for starting this hearing half an hour too late, but we
had two votes right in a row and that takes precedence over every-
thing else. So I apologize to you.
On April 9, 1942, Allied forces in the Philippines surrendered Ba-
taan to the Japanese. Ten to twelve thousand American soldiers
were forced to march some 60 miles in broiling heat, in a deadly
trek known as the Bataan Death March. Following a lengthy in-
ternment under horrific conditions, thousands of POWs were
shipped to Japan in the holds of freighters known as hell ships.
Once in Japan, many of these POWs were forced into slave labor
for private Japanese steel mills and other private companies until
the end of the war. During the war, over 27,465 Americans were
captured and interned by the Japanese. Only 16,000 of them made
it home.
Let me say at the outset that this is not a dispute with the Japa-
nese people and these are not claims against the Japanese Govern-
ment. Rather, this is a hearing, the purpose of which is to deter-
mine whether those who profited from the slave labor of American
POWs have an obligation to remedy their wrongs, and whether the
United States can help to facilitate a resolution.
Let me also say to the veterans who are here today on behalf of
this committee, the Congress, and the American people, we thank
you. As has often been expressed, POWs experience a wide range
of emotions concerning their captivity. I am here to tell you today
that you are all heroes. You are heroes for your bravery on the bat-
tlefields and, of course, in the prison camps themselves, heroes for
(1)
2
the innumerable displays of compassion and love for your fellow

men, heroes for your perseverance through circumstances most of
us can barely imagine. You are living testaments to the indomi-
table human spirit that is the fabric of this great Nation, the
United States of America, and everyone here living in freedom
owes you a tremendous debt of gratitude.
Unfortunately, global, political, and security needs of the time
often overshadowed your legitimate claims for justice, and you were
once again asked to sacrifice for your country. Following the end
of the war, for example, our Government allegedly instructed many
of the POWs held by Japan not to discuss their experiences and
treatment. Some were even asked to sign nondisclosure agree-
ments. Consequently, many Americans remain unaware of the
atrocities that took place and the suffering our POWs endured.
Through the years, various efforts have been made to offer some
compensation for POWs held in Japan. Under the War Claims Act,
our Government has made meager payments of $1.00 a day for
missed meals and $1.50 per day for lost wages. Clearly, in the eyes
of most, this is inadequate.
Following the passage of a California statute extending the stat-
ute of limitations for World War II claims until 2010, and the re-
cent litigation involving victims of the Holocaust, a new effort is
underway by the former POWs in Japan to seek compensation
from the private companies which profited from their slave labor.
One issue for the committee to examine is whether the POWs
held in Japan are receiving an appropriate level of advocacy from
the U.S. Government. In the Holocaust litigation, the United States
played a facilitating role in the discussions between German com-
panies and their victims. The Justice Department also declined to
file a Statement of Interest in the litigation, even when requested
by the court. The efforts of the administration were entirely appro-
priate and the settlement was an invaluable step toward movement
forward from the past.
Here, in contrast, there has been no effort by our Government,
through the State Department or otherwise, to open a dialog be-
tween the Japanese and the former POWs. Moreover, in response
to a request from the court, the Justice Department did, in fact, file
a Statement of Interest which was very damaging to the claims of
the POWs, stating in essence that their claims were barred by the
1951 Peace Treaty with Japan and the War Claims Act.
This contrasting treatment raises the legitimate questions of
whether this administration has a consistent policy governing
whether and how to weigh in during these World War II-era cases.
What, if any, are the criteria used to decide whether or not to in-
tervene? Have those criteria been fairly applied in this case?
From a moral perspective, the claims of those forced into labor
by private German companies and private Japanese companies ap-
pear to be of similar merit. Yet, they have spurred different re-
sponses from the administration. Why? There may be legitimate
reasons for the differences, but we need to ask the questions.
The Statement of Interest filed by the Justice Department in the
lawsuits against Japanese companies also raises a number of ques-
tions because of its silence concerning a number of important trea-
ty provisions and concepts of international law. The committee has
3
a duty to ensure the thoroughness of the work the Justice Depart-

ment submits to the court, and we will explore some of those issues
here today.
Our first panel of witnesses will address these questions to the
administration. We are pleased to have representatives from the
Departments of Justice and State. We are then fortunate to have
the benefit of hearing from a number of POWs themselves who can
tell us of their experiences and their struggles for recognition and
compensation from the private companies that held them.
In the end, I hope we can elevate the discussion concerning
where we go from here. I am not sure agreement on this issue will
be easy. What can the United States of America, the country these
men sacrificed for, do to resolve these matters in a fair and appro-
priate manner?
Here in the Senate, we are doing what we can. With the help of
Senator Feinstein, we have moved through the Judiciary Commit-
tee Senate bill 1902, the Japanese Records Disclosure Act, which
would set up a commission to declassify thousands of Japanese Im-
perial Army records held by the U.S. Government, after appro-
priate screening for sensitive national security information and the
like.
The Senate is also doing what it can to fulfill our Governments
responsibility to these men by including a provision in the DOD au-
thorization bill which would pay a $20,000 gratuity to POWs from
Bataan and Corregidor who were forced into labor. Such payment
would be in addition to any other payments these veterans may re-
ceive under law, and thus would not compromise any of the claims
asserted in the litigation against the Japanese companies.
Ultimately, I do not know where we will come out on the precise
meaning of the treaty. Regardless of how the technical legal issues
are resolved, which the courts will determine in light of the moral
imperative and interests of simple fairness, we must ask ourselves
can Congress do more? Can the executive branch do more? I am
open to ideas and hope that this hearing begins a dialog to discuss
what can be done in light of all the moral, legal, national security,
and foreign policy interests which are at play.
We are delighted to have one of our colleagues here today from
New Mexico, Senator Bingaman, and we will turn to him for his
testimony at this time. However, I may interrupt at any time if the
ranking member comes and cares to make a statement himself.
So, Senator Bingaman, we will take your statement at this time.
I understand that the Honorable Max Cleland may be here shortly.
If he comes, we will certainly take his statement along with yours.
STATEMENT OF HON. JEFF BINGAMAN, A U.S. SENATOR FROM
THE STATE OF NEW MEXICO
Senator BINGAMAN. Thank you very much, Mr. Chairman. I will
just take a very small amount of time here from the committee to
speak specifically about S. 1806, which is a bill I introduced and
you referred to. It is now included in the defense authorization bill.
We introduced this last October, with Senators Coverdell and
Domenici and Hollings and Cleland as cosponsors with me on the
bill. It would provide an honorarium of $20,000 to qualified veter-
ans or their surviving spouses, and by qualified I mean those who
4
were made to perform slave labor to support the Japanese war ef-
fort.
I introduced the bill for a variety of reasons. You went through
many of those in your opening statement. Clearly, these veterans
were not adequately recognized and compensated for their con-
tributions. Part of the settlement between the United States and
the Government of Japan provided for compensation to American
prisoners of war in 1952. That settlement, however, never com-
pensated American prisoners who were made to perform slave
labor while they were in captivity.
We sure are well aware, many of our veterans, many survivors
of the Bataan and Corregidor episodes were shipped on so-called
death ships to Japan and worked in shipyards, mines, and factories
to support the Japanese war effort. Some of those ships unfortu-
nately were actually sunk by our own forces, who were unaware
that they had human cargo of Americans on board.
This came to my attention, frankly, because a good friend of
mine, Nick Cintas, who is a former prisoner of war, a Bataan vet-
eran who lives in my town of Silver City, called it to my attention
a year or so ago. He pointed out then that he didnt think our Gov-
ernment was doing what it should. In particular, he pointed to the
fact that the Government of Canada had recently approved a hono-
rarium to Canadian prisoners of war from Hong Kong who were
enslaved by the Japanese, and that award did not prejudice in any
way other attempts to obtain compensation. Instead, it was an ex-
pression of support and appreciation by the Canadian Government.
We then put together this legislation that I have referred to, with
the clear view that we should do at least as well by our veterans,
our Bataan and Corregidor veterans, as the Canadian Government
had done.
Clearly, the heroism of these individuals is well documented.
There is no question that this is a worthwhile effort to compensate
them for this slave labor that was performed. I wanted to particu-
larly just call the committees attention to this legislation as we
continue to work on the defense authorization bill on the Senate
floor, and solicit active support of any additional Senators who are
anxious to support this.
I think it would mean a great deal to those who are surviving,
and there are fewer who are surviving each day. I know that there
are a great many Bataan veterans who came from New Mexico,
and the number who still survive is dwindling each month. So it
is very important that we pass this legislation and that we do so
this year.
I commend the committee for having this hearing, and I hope
that in addition to this legislation, you can find some other ways
to be of assistance.
The CHAIRMAN. Well, thank you, Senator Bingaman. We appre-
ciate you being here and appreciate you taking time out of your
valuable schedule. Thank you.
I notice that Senator Feinstein is here. Would you care to make
opening remarks on behalf of the minority?
5
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR
FROM THE STATE OF CALIFORNIA
Senator FEINSTEIN. Just very quickly, if I might, Mr. Chairman,
let me begin by thanking you for holding this hearing. I am par-
ticularly pleased that a constituent of mine, Dr. Lester Tenney,
was able to come before the committee today and share his experi-
ences.
As many of my colleagues know, Dr. Tenney has written a book
detailing the brutality experienced by Americans at the hands of
the Japanese Imperial Army and private Japanese companies that
ran labor camps. I would like to commend him not only for endur-
ing these conditions while held captive in Japan, but also for pre-
serving a historical record from which future generations can learn.
Mr. Chairman, the veterans who have joined us today are all
Americans who have served in Bataan and performed slave labor
in Japanese mines, shipyards, and factories. As prisoners of war,
they were subject to deprivation of liberty, to beatings, to starva-
tion, and to other atrocities. Their endurance through all this sym-
bolizes the sacrifice of all of the brave men who served during
World War II.
I am hopeful that measures such as the bill I have introduced,
the Japanese Imperial Army Disclosure Act, will assist in bringing
to full disclosure evidence of use of chemical and biological agents,
as well as atrocities that individuals have faced.
I think it is important that these classified records be released
much as the German classified Holocaust-related records have been
released. And I think by airing the light of day on much of this,
we will be able to put this very terrible chapter behind us.
I thank you, Mr. Chairman. I look forward to the testimony.
The CHAIRMAN. Well, thank you so much, Senator.
Our first panelnow, if Senator Cleland comes, we will interrupt
this panel, but on the first panel we are pleased to have Acting As-
sistant Attorney General for the Civil Division of the Department
of Justice, David Ogden. Mr. Ogden supervised the preparation and
filing of the Statement of Interest which has been filed in the POW
litigation.
Deputy legal adviser at the State Department, Ronald Bettauer,
also worked on the Statement of Interest, and advised Under Sec-
retary of State Thomas Pickering on the legal issues involved. We
did invite Under Secretary Pickering to appear himself to help ex-
plain the policy of when the State Department decides to intervene
in these types of claims. We understand that he was the decision-
maker at the State Department on whether to file something in
this case.
Unfortunately, he declined our invitation. I think he has made
a mistake. We will hear from him on this matter because he cannot
avoid accountability on this matter, so I would like you to send
that message back to the State Department. We believe it is incum-
bent on something as important as this that people come.
So we are pleased to have the two of you here, and we will take
your statement first, Mr. Ogden.
6
PANEL CONSISTING OF DAVID W. OGDEN, ACTING ASSISTANT
ATTORNEY GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF
JUSTICE, WASHINGTON, DC; AND RONALD J. BETTAUER,
DEPUTY LEGAL ADVISER, DEPARTMENT OF STATE, WASH-
INGTON, DC
STATEMENT OF DAVID W. OGDEN
Mr. OGDEN. Mr. Chairman, Senator Feinstein, members of the
committee, I appreciate very much the opportunity to appear before
you to provide additional information concerning the United States
Statement of Interest in Heimbuch v. Ishihara Sangyo Kaisha Ltd.,
a case brought by American prisoners of war of the Japanese
against Japanese companies.
Based upon the chairmans letter to the Attorney General and
my own discussions with committee staff, I understand that the
chairman is seeking to ensure that the Department is applying con-
sistent policy in its treatment of various World War II-related and
prisoner of war-related matters, and in particular to assure that
the Justice Department fulfilled its professional obligations and
based its filing in Heimbuch on sound, thorough legal and histori-
cal analysis. I welcome the opportunity to address those questions,
and as I will explain, I believe the Department has been both con-
sistent and diligent in its representation of the United States in
this matter.
Before turning directly to these questions, however, I would like
to make some preliminary and somewhat personal observations.
First, I consider it a singular privilege to represent the United
States in our courts, and recognize that this privilege carries sub-
stantial obligations. Foremost among these, of course, is the attor-
neys responsibility to his client, to represent the United States in-
terests faithfully and diligently, consistent with the law.
Counsel for the United States is also an officer of the court and
a servant of the American people. As such, there is a particularly
strong obligation to help the courts correctly apply the law and to
do justice in matters affecting the interests of the United States.
As acting head of the Civil Division, I have been blessed to have
the support of a dedicated and talented group of career attorneys
who day in and day out meet those high standards and help me
to do so.
I have also found that, on occasion, the faithful performance of
these duties can be personally painful. That has been certainly true
in the Heimbuch case. I have a profound respect for and feel a deep
personal indebtedness to the plaintiffs in this case. They and other
great Americans like them endured the most brutal of conditions
in the service of this Nation, as you said, Mr. Chairman, and their
efforts and suffering were crucial to safeguarding our freedom at
a very dark hour. I have not relished the responsibility of submit-
ting legal papers on behalf of this Nation that have opposed their
legal claims against entities that they allege abused them and ben-
efited from their enslavement during the war.
Let me turn now to the specifics of the case. In a March 24, 2000,
order in Heimbuch, U.S. District Judge Alsup, of the Northern Dis-
trict of California, requested that the United States express its
views on whether Federal law governs any claims by American sol-
7
diers captured and imprisoned by Japan during World War II

where such claims are directed to private Japanese companies for
whom such soldiers were forced to work as slaves, and whether re-
moval of such claims from State court to Federal court is proper.
On May 23, 2000, the Department of Justice, on behalf of the
United States, filed a Statement of Interest with respect to those
issues, as you have said, Mr. Chairman, and expressed the position
that such claims are governed by Federal law and should be heard
in Federal court.
This conclusion was based on the 1951 Peace Treaty between the
United States and Japan, in which the United States expressly
waived its own claims and those of its nationals against Japan and
its nationals arising from prosecution of the war. The United
States has not been asked to provide, and has not purported to pro-
vide, its views with respect to any other aspects of those cases.
Under 28 U.S.C. section 517, the Department of Justices role is
to represent the positions and policies of the United States in liti-
gation matters. The Department of Justice, as you undoubtedly
know, tries to be as responsive as possible to judicial requests for
the views of the United States in cases that affect the interests of
the United States.
When we receive such a request, such as the one in Heimbuch,
we communicate immediately with the appropriate client agency to
determine what the appropriate response should be. In this case,
the Justice Department acted at the request of the Department of
State, which, of course, is the Agency responsible for conducting
the foreign relations of the United States, including interpreting
treaties to which the United States is a party.
The State Department asked the Justice Department to file a
brief in response to the courts request in Heimbuch advising the
court that the 1951 Peace Treaty preempted any State law claims
and required that the matter be heard in Federal court. Our attor-
neys reviewed the State Departments request carefully and thor-
oughly, and worked closely with the lawyers in States Legal Advis-
ers Office, including Mr. Bettauer, to research the issues and to
present the court with a statement responsive to its inquiry that
represented the legal and policy position of the United States.
As you will see from the written answers that we have provided
to your questions, Mr. Chairman, it is clear from the language of
the 1951 Treaty and the materials surrounding its negotiation and
ratification by the Senate that the United States intended to waive
its claims and those of its nationals against Japan and its nation-
als.
As I have said, we admire and sympathize with these valiant
men who were prisoners of war, and condemn the wartime policies
of Japan and its industry that forced them into servitude. But in
1951, President Truman and the U.S. Senate made a carefully con-
sidered national decision that our interests would best be served by
a peace settlement that resolved all potential claims. For that rea-
son, it was the strong view of the Department of State that the
United States, having made this solemn commitment in a treaty,
must honor that obligation. The Statement of Interest was filed in
that spirit.
8
Now, I know that the chairman is also concerned that, in con-

trast to Heimbuch, as you said, Mr. Chairman, the United States
did not file a statement of interest in Gross v. Volkswagen and
Rosenfeld v. Volkswagen, litigation in the District of New Jersey in-
volving the claims of individuals who were allegedly enslaved by
German entities during the war.
In a letter we have attached to our answers to the committees
questions, I advised U.S. District Judge John W. Bissell that nego-
tiations between representatives of the plaintiffsthat is, rep-
resentatives of the victims thereand representatives of Germany
and German industry were ongoing at that time over the creation
of a German foundation to compensate victims, and that those ne-
gotiations were then at a very delicate stage.
As I explained, as a result, we are reluctant to take action now
that might interfere with achieving this objective, an achievement
we believe the court would welcome. The Department also agreed
to update the court at that time on the progress of talks and per-
haps to provide the Departments views, if that would be appro-
priate.
Thus, the Governments decision not to submit its views to Judge
Bissell was done in an effort to facilitate a consensual settlement
of the case that might make resolution of the legal issues unneces-
sary and provide relief to many victims. The decision not to file a
brief in Gross and Rosenfeld was made based upon the rec-
ommendation of the Department of State, which has been leading
the effort that you described, Mr. Chairman, by the U.S. Govern-
ment to facilitate such a resolution.
The State Departments responsibility is to determine the policy
interests of the United States in this regard, and after extensive
discussion the Department of Justice deferred to its policy views
with respect to declining to file a statement of interest on the
grounds I have described.
I hope that these remarks and the written answers that we have
provided to the committees inquiries are helpful. I would be glad
to respond to any questions the committee may have.
[The prepared statement of Mr. Ogden follows:]
PREPARED STATEMENT OF DAVID W. OGDEN
Mr. Chairman and Members of the Committee: I appreciate the opportunity to ap-
pear before you to provide additional information concerning the United States
Statement of Interest in Heimbuch, et al. v. Ishihara Sangyo Kaisha, Ltd. et al., a
case brought by American prisoners of war of the Japanese against Japanese compa-
nies. Based upon the Chairmans letter to the Attorney General and my own discus-
sions with Committee staff, I understand that the Chairman is seeking to ensure
that the Justice Department is applying a consistent policy in its treatment of var-
ious World War II-related and prisoner of war-related matters, and in particular to
assure that the Justice Department fulfilled its professional obligations and based
its filing in Heimbuch on a sound, thorough legal and historical analysis. As I will
explain, I believe the Department has been both consistent and diligent in its rep-
resentation of the United States in this matter.
Before turning directly to these questions, I would like to make some preliminary
and somewhat personal observations. First, I consider it a singular privilege to rep-
resent the United States in our courts, and recognize that this privilege carries sub-
stantial obligations. Foremost among these, of course, is the attorneys responsibility
to his clientto represent the United States interests faithfully and diligently con-
sistent with the law. Counsel for the United States is also an officer of the Court,
and a servant of the American people. As such, there is a particularly strong obliga-
tion to help the courts correctly apply the law and do justice in matters affecting
9
the interests of the United States. As acting head of the Civil Division, I have been
blessed to have the support of a dedicated and talented group of career attorneys
who, day in and day out, meet those high standards and help me to do so.
I have also found that, on occasion, the faithful performance of these duties can
be personally painful. That has been true in the Heimbuch case. I have profound
respect for, and feel deep personal indebtedness to, the plaintiffs in this case. They,
and other great Americans like them, endured the most brutal of conditions in the
service of this Nation, and their efforts and suffering were crucial to safeguarding
our freedom at a very dark hour. I have not relished the responsibility of submitting
legal papers on behalf of this Nation that have opposed their legal claims against
entities that, they allege, abused them and benefitted from their enslavement dur-
ing the War.
Let me turn now to the specifics of the case. In a March 24, 2000 Order in
Heimbuch, United States District Judge Alsup of the Northern District of California
requested that the United States express its views on whether federal law governs
any claims by American soldiers captured and imprisoned by Japan during World
War II, where such claims are directed to private Japanese companies for whom
such soldiers were forced to work as slaves, and whether removal of such claims to
federal court is proper. On May 23, 2000, the Department of Justice, on behalf of
the United States, filed a Statement of Interest with respect to those issues, and
expressed the position that such claims are governed by federal law and should be
heard in federal court. This conclusion was based on the 1951 peace treaty between
the United States and Japan, in which the United States expressly waived its own
claims, and those of its nationals, against Japan and its nationals, arising from the
prosecution of the War. The United States has not been asked to provide, and has
not purported to provide, its views with respect to any other aspects of those claims.
Under 28 U.S.C. 517, the Department of Justices role is to represent the positions
and policies of the United States in litigation matters. The Department of Justice,
as you will undoubtedly understand, tries to be as responsive as possible to judicial
requests for the views of the United States in cases in which there is a federal inter-
est. When we receive a request such as the one in Heimbuch, we communicate with
the client agency to determine what the appropriate response should be. In this
case, the Justice Department acted at the request of the Department of State,
which, of course, is the agency responsible for conducting the foreign relations of the
United States, including interpreting treaties to which the United States is a party.
The State Department asked the Justice Department to file a brief in response to
the Courts request in Heimbuch, advising the Court that the 1951 peace treaty pre-
empted any state law claims and required that the matter be heard in federal court.
Our attorneys reviewed the State Departments request carefully and thoroughly
and worked closely with lawyers in States Legal Advisers office to research the
issues and to present the court with a statement responsive to its inquiry that rep-
resented the legal and policy views of the United States. As you will see from the
Departments written answers to the questions you submitted, it is clear from the
language of the 1951 peace treaty and the materials surrounding its negotiation and
ratification that the United States intended to waive its claims and those of its na-
tionals against Japan and its nationals. As I have said, we admire and sympathize
with these valiant men who were prisoners of war, and condemn the wartime poli-
cies of Japan and its industry that forced them into servitude. But in 1951, Presi-
dent Truman and the United States Senate made a carefully considered, national
decision that our interests would best be served by a peace settlement that resolved
all potential legal claims. For that reason, it was the strong view of the Department
of State that, the United States having made this solemn commitment in a treaty,
it must honor its obligation. The Statement of Interest was filed in that spirit.
I know that the Chairman is also concerned that, in contrast to the filing in
Heimbuch, the United States did not file a Statement of Interest in Gross v. Volks-
wagen and Rosenfeld v. Volkswagen, litigation in the District of New Jersey involv-
ing the claims of individuals who were allegedly enslaved by German entities during
the War. In a letter we have attached to our answers to the Committees questions,
I advised United States District Judge John W. Bissell that negotiations between
representatives of the plaintiffs and representatives of Germany and German indus-
try were ongoing over creation of a German foundation to compensate victims, and
that those negotiations were then at a very delicate stage. As I explained, as a
result, we are reluctant to take action now that might interfere with achieving that
objective, an achievement we believe the court would welcome. The Department
also agreed to update the Court on the progress of the talks and perhaps suggest
a further schedule for providing the United States views. Thus, the governments
decision not to submit its views to Judge Bissell was done in an effort to facilitate
10
a consensual settlement of the case that might make resolution of the legal issues
unnecessary.
The decision not to file a brief in Gross and Rosenfeld was made based upon the
recommendation of the Department of State, which has been leading an effort by
the United States government to facilitate such a resolution. Its responsibility is to
determine the policy interests of the United States in this regard, and the Depart-
ment of Justice deferred to its policy views with respect to declining to file a State-
ment of Interest in the district court.
I hope that these remarks, and the written answers we have provided to the Com-
mittees inquiries, are helpful. I would be glad to respond to any questions the Com-
mittee may have.
The CHAIRMAN. Thank you, Mr. Ogden.
Mr. Bettauer.
STATEMENT OF RONALD J. BETTAUER
Mr. BETTAUER. Thank you very much, Mr. Chairman, Senator
Feinstein. Good morning. I also appreciate the opportunity to ap-
pear before you today. I am a Deputy Legal Adviser at the Depart-
ment of State and have been directly involved in both the German
slave and forced labor negotiations, and the development of our po-
sition on the class action lawsuits that have been brought by
former POWs against Japanese private companies in California
State court.
Let me begin by expressing the administrations and my own per-
sonal sympathy to the victims of Japanese wartime aggression and
our deep gratitude for those veterans who bravely served our coun-
try in the Pacific theater during World War II. We and the Amer-
ican people owe these veterans a great debt.
I intend to address briefly the 1951 Treaty of Peace with Japan
and why the State Department asked the Department of Justice to
file a Statement of Interest in favor of removal of the lawsuits to
Federal court.
Article 14(b) of the 1951 Treaty of Peace with Japan provides
that:
except as otherwise provided in the * * * Treaty, the Allied
powers waive all reparations claims of the Allied powers,
other claims of the Allied powers and their nationals, aris-
ing out of any action taken by Japan and its nationals in
the course of the prosecution of the war.
The CHAIRMAN. Is that the language you are basically relying on,
then?
Mr. BETTAUER. That is the basic language, yes.
The CHAIRMAN. But how can the Government waive the rights of
individuals?
Mr. BETTAUER. Well, I will talk a little bit about how this oc-
curred.
The CHAIRMAN. I shouldnt have interrupted you. I can see how
the Government can waive its rights. I can see how it can enter
into a treaty. I can see how it can do all of that. But what bothers
me is how can it, without the consent of the individual citizens,
waive the rights of individual citizens who have been mistreated.
Mr. BETTAUER. The Government has had the power to address
the claims and settle the claims against foreign nations of citizens
for some 200 years under our system, going all the way back, I be-
lieve, to the Jay Treaties. There are many cases, including Bel-
11
mont, Dames and Moore, which have upheld the espousal power of
the United States to take up the claims of the citizens and to settle
them against
The CHAIRMAN. That is right, if they actually take up the claims
of the citizens and actually settle them for the benefit of the citi-
zens. And I could see where that would apply, but here it seems
to me they have just ignored the claims of the citizens, other than
the $1.50 a day.
Mr. BETTAUER. Well, I think you have to look at what the treaty
intended to accomplish as a whole.
The CHAIRMAN. Yes, but I looked at the treaty and I dont see
the language in there that forecloses individual suits for repara-
tions. That is where I am having some difficulty. I am not trying
to give you a rough time. I just want to
Mr. BETTAUER. This treaty by its terms settles all war-related
claims of the United States
The CHAIRMAN. So what? So what?
Mr. BETTAUER [continuing]. And its nationals, and precludes the
possibility of taking
The CHAIRMAN. You mean our Federal Government can just say,
to hell with you Bataan death marchers and you people who were
mistreated, we are just going to waive all your rights because we
have the almighty power to do so?
Mr. BETTAUER. There was a decision made in the 1950s
The CHAIRMAN. I dont care about the decision. I am saying, can
the Federal Government do that?
Mr. BETTAUER. Yes, I think the Federal Government can do that.
The CHAIRMAN. Actually take away their rights without giving
them a chance to be heard?
Mr. BETTAUER. That is, I think, an established authority of the
Federal Government.
The CHAIRMAN. I dont believe that. I mean, I know that you are
sincere in expressing that, but I cant believe that under our Con-
stitution that that is going to be upheld.
Mr. BETTAUER. I would suggest that it has been upheld many
times.
The CHAIRMAN. All right, I will listen further.
Mr. BETTAUER. As I said, the treaty then settles the claims, in
our view, and we think this reading of the treaty is in accord with
the basic principle of treaty interpretation in the 1969 Vienna Con-
vention on the Law of Treaties that a treaty shall be interpreted
in good faith, in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in light of its object
and purpose.
The CHAIRMAN. Yes, but, look, Mr. Bettauer, I think there is a
distinction between individual claims arising under domestic law
versus international law.
Mr. BETTAUER. The treaty language says all claims of the powers
and other claims of the powers and of their nationals arising out
of any actions taken by Japan and its nationals. It is not limited
to claims under
The CHAIRMAN. Constitutionally, can our Government take away
the rights of individual citizens just because they have put it in a
12
treaty, put language in a treaty? Can you cite a case in point, abso-
lutely in point on that issue? Just give me a case.
Mr. BETTAUER. There is a good review of the previous authorities
by the Supreme Court in Dames and Moore v. Reagan. This is the
case that upheld the Algiers Accords, which was the agreement by
which the U.S. hostages in Iran were released. At that time, we
had an agreement that took the claims of those hostages out of
U.S. courts and sent them to a tribunal in The Hague, and which
took some of the claims, the claims of the people who had actually
been hostagewe took claims of Americans against Iran and sent
them to our tribunal. But the claims of the hostages themselves
were extinguished, and there was litigation about that, too, and
that was upheld as well.
The CHAIRMAN. Upheld by whom?
Mr. BETTAUER. The U.S. courts.
The CHAIRMAN. I dont think this case has been really tried. I
dont think it has been tested. If there is a private right of action,
isnt that property under the fifth amendment? If so, taking that
property requires just compensation.
Mr. BETTAUER. Let me go on to how we got there.
The CHAIRMAN. Sure; now, if I could just interrupt you again, I
have to shuttle between the Finance Committee and here because
there is a very important markup going on. So if I have to leave,
I am going to ask you, Senator Feinstein, or if there is a Repub-
lican here, fine, but if not, I am going to ask you to continue this
hearing. Both Senator Feinstein and I have, I think, very similar
interests in this and want to get to the bottom of it and see what
can be done here.
But continue, Mr. Bettauer.
Mr. BETTAUER. OK; the fact that the treaty waived all claims is
unambiguously supported by the negotiating history of the treaty,
by the broad security objectives of the U.S. Government at the
time, and by the extensive, often excruciatingly painful delibera-
tions that preceded the treatys advice and consent by the Senate.
The Senate considered these issues.
The overarching intent of those who negotiated, signed, and ulti-
mately ratified the treaty was to bring about a complete global set-
tlement of all war-related claims, in order both to provide com-
pensation to the victims of the war and to rebuild Japans economy
and convert Japan into a strong U.S. ally.
It was recognized at the time that those goals could not have
been served had the treaty left open the possibility of continued,
open-ended legal liability of Japanese industry for its wartime ac-
tions. In this regard, the negotiators and the U.S. Senate were ex-
tremely sensitive to the calamitous results of the continuing debts
that had been imposed on Germany by the Treaty of Versailles.
Another provision of the treaty, article 19(a), similarly closed off
the possibility of claims being brought by Japanese nationals
against the United States or its nationals arising out of both the
war and the subsequent occupation of Japan.
Our longstanding position is not one that we have reached cas-
ually or lightly. We have thoroughly examined all of the legal argu-
ments that have been advanced, and have undertaken an exhaus-
tive amount of historical research. Although we sympathize with
13
those who have brought the lawsuits and acknowledged that they
have suffered great injuries in the service of their country, we are
convinced that the treaty precludes these lawsuits and that we
have no legal basis upon which to approach Japan or its nationals
for additional compensation for war claims.
Our decision to ask the Justice Department to file a Statement
of Interest, which was specifically solicited by a Federal district
court, was based not only on our concern for upholding our inter-
national legal obligations, but also upon the fact that the treaty is
a duly ratified international agreement of the United States that
is therefore the supreme law of the land.
The treaty was approved by the U.S. Senate by a strong two-
thirds majority on March 20, 1952, and subsequently ratified by
President Truman. The records of the hearings of the U.S. Senate
and the U.S. Senate Foreign Relations Committee indicate that the
Senate was well aware that article 14(b) settled all war-related
claims. In fact, the Senate heard testimony from several members
of the public who were not pleased with this provision. The Senate
gave its advice and consent by a vote of 66 to 10, without inserting
a single reservation pertaining to war claims or article 14(b) in its
resolution of ratification.
Let me emphasize that the Senates action occurred shortly after
termination of the hostilities when the horrific wounds of World
War II were still fresh, emotions still raw, and the memories of the
wars innumerable tragedies still vivid.
A large part of the treaty was devoted to the issue of reparations.
The scheme of the treaty was that each state party would com-
pensate its own nationals for their injuries, either out of con-
fiscated Japanese public and private assets or otherwise. To this
end, the United States confiscated approximately $90 million worth
of assets owned by the Japanese Government and Japanese private
nationals, including companies, and used the proceeds to satisfy
the monetary claims of U.S. nationals who were victims of Japa-
nese aggression.
Congress passed an amendment to the War Claims Act of 1948
to create a new war claims program that would award American
war victims, including slave and forced laborers, amounts to be de-
termined by a war claims commission using the proceeds of lique-
fied Japanese assets. Congress, through its approval of the treaty
and amendment of the War Claims Act, created an exclusive Fed-
eral remedy for all American victims of the war.
Thus, when the United States filed its Statement of Interest on
May 23, outlining why these lawsuits belong in Federal court, we
did so not only because of our international obligations and our for-
eign policy concerns, but because we believe our stance is true to
the intent of the U.S. Congress that approved the ratification of the
treaty and created a comprehensive war claims program. It is con-
sistent with the broad, bipartisan consensus that existed in all
branches of Government in 1952 that this treaty was in the overall
best interests of the American people and that reparations provi-
sions were fair and reasonable.
For nearly 50 years, the treaty has sustained our security inter-
ests and supported peace and stability throughout East Asia. We
believe the treaty leaves no sound legal basis for the United States
14
or its nationals to seek further monetary recovery against Japanese

corporations, and that the treaty remains the supreme law of the
land.
Thank you, Madam Chairman.
[The prepared statement of Mr. Bettauer follows:]
PREPARED STATEMENT OF RONALD J. BETTAUER
Mr. Chairman and Members of the Committee: Good morning. My name is Ronald
Bettauer. I am a Deputy Legal Adviser at the U.S. Department of State. I have been
directly involved in both the German forced labor/slave labor negotiations and the
development of our position on the class action lawsuits that have been brought by
former POWs against Japanese private companies in California state courts. Let me
begin by expressing the Administrations and my own personal sympathy to the vic-
tims of Japanese wartime aggression, and our gratitude for those veterans who
bravely served our country in the Pacific theater during World War II. We, and the
American people, owe these gentlemen a great debt.
I intend to address briefly the 1951 Treaty of Peace with Japan, and why the
State Department asked the Department of Justice to file a Statement of Interest
in favor of removal of the lawsuits to federal court.
The 1951 the Treaty of Peace with Japan settles all war-related claims of the U.S.
and its nationals, and precludes the possibility of taking legal action in United
States domestic courts to obtain additional compensation for war victims from
Japan or its nationalsincluding Japanese commercial enterprises. Article 14(b) of
the Treaty provides that, [e]xcept as otherwise provided in the * * * Treaty, the
Allied Powers waive all reparations claims of the Allied Powers, other claims of the
Allied Powers and their nationals arising out of any actions taken by Japan and its
nationals in the course of the prosecution of the war * * * This position is in ac-
cord with basic principles of treaty interpretation as set forth in the 1969 Vienna
Convention on the Law of Treaties, i.e., [a] treaty shall be interpreted in good faith,
in accordance with the ordinary meaning to be given to the terms of the treaty in
their context and in light of its object and purpose.
This is clear and unequivocal language: all reparations claims against Japan and
its nationals. This language is unambiguously supported by the negotiating history
of the Treaty, and by the broad security objectives the U.S. Government hoped to
achieve with the Treaty, and, most important for present purposes, by the extensive,
often excruciatingly painful deliberations that preceded the Senates advice and con-
sent to ratification of the treaty.
The overarching intent of those who negotiated, signed, and ultimately ratified
this Treaty was to bring about a complete, global, settlement of all war-related
claims, in order both to provide compensation to the victims of the war and to re-
build Japans economy and convert Japan into a strong U.S. ally. It was recognized
at the time that those goals could not have been served had the Treaty left open
the possibility of continued, open-ended legal liability of Japanese industry for its
wartime actions. In this regard, the negotiators and the U.S. Senate were extremely
sensitive to the calamitous results of the continuing debts that had been imposed
on Germany in the Treaty of Versailles. Another provision of the Treaty, Article
19(a), similarly closed off the possibility of claims being brought by Japanese nation-
als against the United States or its nationals arising out of both the war and the
subsequent occupation of Japan.
Our longstanding position is not one that we have reached casually or lightly. We
have thoroughly examined all of the legal arguments that have been advanced by
the parties to these lawsuits, and we have undertaken an exhaustive amount of his-
torical research. We have also discussed the issue with one of the direct participants
in the negotiations. Although we sympathize with the plaintiffs and acknowledge
that they suffered great injuries in the service of their country, we are convinced
that the Treaty precludes these lawsuits, and that we have no legal basis upon
which to approach Japan and its nationals for additional compensation for war
claims.
Our decision to ask the Justice Department to file a Statement of Interest, which
was specifically solicited by the federal district court, was based not only on our con-
cern for upholding our international legal obligations, but also upon the fact that
this Treaty is a duly ratified international agreement of the United States that is,
therefore, the supreme law of the land. This Treaty was approved by the U.S. Sen-
ate by a strong two-thirds majority on March 20, 1952, and subsequently ratified
by President Truman.
15
The records of the hearings of the U.S. Senate, and the U.S. Senate Foreign Rela-
tions Committee, indicate that the Senate was well aware that Article 14(b) settled
all war-related claims, and in fact, heard testimony from several members of the
public who were not pleased with that provision. The Senate gave its advice and
consent by a vote of 66 to 10, without inserting a single reservation pertaining to
war claims or Article 14(b) in its resolution of advice and consent. Let me empha-
size, particularly, that the Senates action occurred only shortly after the termi-
nation of hostilities, when the horrific wounds of World War II were still fresh, emo-
tions still raw, and the memories of the wars innumerable tragedies still vivid.
A very large part of the Treaty was devoted to the issue of reparations. The
scheme of the Treaty was that each state party would compensate its own nationals
for their injuries, either out of confiscated Japanese public and private assets, or
otherwise. To this end, the United States confiscated approximately 90 million dol-
lars worth of assets owned by Japan and Japanese private nationals (including Jap-
anese companies), and used the proceeds to satisfy the monetary claims of U.S. na-
tionals who were victims of Japanese aggression. The U.S. Congress amended the
War Claims Act of 1948 to create new war claims programs that would award
American war victims, including slave/forced laborers, in amounts to be determined
by a War Claims Commission, using the proceeds of liquidated Japanese assets. We
believe that Congress, through its approval of the Treaty and the amendment of the
War Claims Act, intended to create an exclusive federal remedy for all American
victims of the war.
Thus, when the United States filed its Statement of Interest on May 23 outlining
why these lawsuits belong in federal court, we did so not only because of our inter-
national obligations or our foreign policy concerns, but because we believe our
stance is true to the intent of the U.S. Congress that approved the ratification of
this Treaty and created a comprehensive war claims compensation program. It is
consistent with the broad, bipartisan consensus that existed in all branches of gov-
ernment in 1952, that this Treaty was in the overall best interests of the American
people and that the reparations provisions were fair and reasonable.
For nearly 50 years, this Treaty has sustained our security interests and sup-
ported peace and stability throughout East Asia. We believe that the Treaty leaves
no sound legal basis for the United States or its nationals to seek further monetary
recovery against Japanese corporations, and that the Treaty remains the supreme
law of the land.
Senator FEINSTEIN. Thank you very much.
Senator SESSIONS [presiding]. Are you prepared to go forward?
Senator FEINSTEIN. I am prepared.
Senator SESSIONS. Senator Feinstein?
Senator FEINSTEIN. Thank you very much, both gentlemen. Let
me read article 14(b), if I might:
Except as otherwise provided in the present Treaty, the
Allied powers waive all reparations claims of the Allied
powers, other claims of the Allied powers and their nation-
als, arising out of any actions taken by Japan and its na-
tionals in the course of the prosecution of the war, and
claims of all powers for direct military costs of occupation.
Now, I think, Mr. Bettauer, you referred to that article, and let
me just read the most-favored-nations clause of article 26:
Should Japan make a peace settlement or war claims
settlement with any state, granting that state greater ad-
vantages than those provided by the present Treaty, those
same advantages shall be extended to the parties to the
present Treaty.
Now, my question then is, Has Japan provided more favorable
terms to other nations in connection with settlements of war claims
than you now assert were provided in the 1951 treaty?
Mr. BETTAUER. If I may start by focusing on article 26 for a sec-
ond, that provision we do not regard really as providing a most-fa-
16
vored-nation-type scheme. John Foster Dulles, who personally

drafted this treaty, included article 27
Senator FEINSTEIN. Twenty-six.
Mr. BETTAUER. Twenty-six, excuse me, and said that the purpose
of the provision was, and I am quoting one of his documents, for
the protection of Japan so that if other countries should make de-
mands upon Japan, Japan would have a basis of resisting by point-
ing to that provision. That was a key goal because the idea was
to pull Japan away from the Communist bloc. Dulles designed the
provision to deter the Japanese from dealing on favorable terms
with the Soviet Union specifically with regard to its territorial de-
mands.
So the only time that Dulles raised article 26 was in 1956, when
Japan and the Soviet Union were negotiating a peace settlement.
Dulles made a public statement to the effect that if Japan recog-
nized the Soviet territorial claims of sovereignty, article 26 might
open the way for the United States to claim comparable benefits.
He explained publicly that he had exerted article 26 for the very
purpose of trying to prevent the Soviet Union from getting more fa-
vorable treatment than the United States got, and that he simply
wanted to remind Japan of its existence.
Dulles then met with the Japanese Ambassador to discuss the
difficulties Japan was having in the negotiations and stated that
the United States had no intention of making territorial demands
itself, but simply to give Japan an argument with the Russians. So
the contemporaneous construction of article 26 and practice under
article 26 suggests that it was not really an MFN provision in the
sense of comparing peace settlements dollar for dollar.
In any event, while certain types of treaties may traditionally
contain MFN provisionsand these can be investment treaties and
tariff treatiesthis is not so with peace treaties. Peace treaties are
so complex and entail so many different types of obligations that
there is really no way of measuring whether, on an overall basis,
one is more advantageous than the other.
Senator FEINSTEIN. Could I stop you just for one moment?
Mr. BETTAUER. Yes.
Senator FEINSTEIN. You didnt really answer my question. My
question is, Has Japan provided more favorable treatment to other
nations?
Mr. BETTAUER. There are a number of other treaties that Japan
has with other nations, because this was a multilateral peace trea-
ty and Japan was encouraged to conclude peace treaties with those
who werent party to it. And there are some claim provisions in
some of those peace treaties, but looking at
Senator FEINSTEIN. That are more favorable?
Mr. BETTAUER. No; it is impossible to say because you have to
know what the claims of the other countries were, what the coun-
terclaims of Japan were, what the other provisions of the peace
treaties were that bear on it. And I dont think we are in a position
that we can conclude any of those is more favorable.
The CHAIRMAN. Well, if I could interrupt, in article 26, it seems
to me the terms of article 26 appear unconditional and automatic.
What they say is, Should Japan make a peace settlement of war
claims settlement with any state granting that state greater advan-
17
tage than those provided by the present treaty, those same advan-
tages shallnot may, could, wouldbut shall be extended to
the parties to the present treaty?
Mr. BETTAUER. Well, as I just explained, the purpose of article
26 was to provide a counterweight to Soviet territorial demands.
The CHAIRMAN. Fine; then why shouldnt the claims of these
American POWs enjoy the same treatment as claims by forced la-
borers from Burma, the Soviet Union, the Netherlands and else-
where, all states that were granted greater advantages within the
meaning of article 26?
Mr. BETTAUER. Well, I dont think we have concluded, Senator,
that they have been granted greater advantages.
The CHAIRMAN. I dont see how you can help but conclude that
they were granted.
Mr. BETTAUER. In addition, we were involved in and facilitated
the negotiations of many of those treaties, not all of them. But, for
example, we encouraged the Burma treaty negotiation. We pressed
Japan to do that, and we never raised an article 26 concern at the
time. It would be too late now, 40 years later, to seek to renegotiate
the benefits we received under the peace treaty because of some-
thing that we assisted Japan in doing back then.
Senator FEINSTEIN. Then what was the rationale behind article
26?
Mr. BETTAUER. I have just tried to explain that, Senator.
Senator FEINSTEIN. But it doesnt seem to me to make sense.
Mr. BETTAUER. We have gone through the historical documents.
Senator FEINSTEIN. You say to wean Japan away from the Com-
munist bloc, but I dont quite see how this relates to weaning
Japan away from the Communist bloc.
Mr. BETTAUER. The two documents that are contemporaneous
that deal with article 26 are a press statement by Dulles and a
memorandum of a conversation that he had about the article. In
both of those documents, Dulles asserts that the purpose of article
26 is to provide Japan a counterweight to territorial demands.
The language, I know, is broader than that, but after 40 years,
it is too late to raise article 26 issues with Japan, particularly since
we were aware contemporaneously of all the agreements that were
under negotiation at the time, and indeed facilitated the negotia-
tion of some of them.
The CHAIRMAN. Let me ask you a few questions. Has the State
Department met with representatives of the Japanese companies at
issue here or with the Japanese Government concerning this mat-
ter, or with both, and if so, when and how often?
Mr. BETTAUER. I am not aware of whether we have met with rep-
resentatives of the Japanese companies. We can get that informa-
tion for you for the record.
The CHAIRMAN. Will you get that for us? OK.
[The information referred to appears in the Appendix, Questions
and Answers section.]
Mr. BETTAUER. I know that the State Department meets with
representatives of the Japanese Government frequently, and I have
been in some meetings.
The CHAIRMAN. On these issues?
18
Mr. BETTAUER. They are interested and they have asked about
this issue.
The CHAIRMAN. How many times has the State Department met
with Mr. Poole or Mr. Bigelow, Mr. Mazer or Mr. Tenney or their
lawyers?
Mr. BETTAUER. Some of their lawyers are former colleagues of
mine from the State Department, so I have met with them many
times.
The CHAIRMAN. I am talking about to discuss these matters.
Mr. BETTAUER. I dont recall that any of their lawyers have re-
quested a meeting with me to discuss these matters. I do not know
if they have met with others in the Legal Advisers Office, and we
can supply that information for the record, if you like.
The CHAIRMAN. Well, if you would, I appreciate it.
[The information referred to appears in the Appendix, Questions
and Answers section.]
The CHAIRMAN. Now, I have to say under article 26, the United
States again is entitled to the same terms of future treaties Japan
may enter into which contain more favorable disposition of claims
than the 1951 treaty. And I repeat again that the terms of article
26 appear unconditional and automatic:
settlement with any state granting that state greater ad-
vantage than those provided by the present treaty, those
present treaty.
This language clearly states that the terms should be extended,
no ifs, ands, or buts. So why shouldnt the claims of these American
POWs get the same treatment, or at least enjoy equal treatment,
as claims by forced laborers from Burma who received money from
Japan? As I understand it, Japan excluded claims with the Soviet
Union arising before August 1945, and there may be other matters
that could be interpreted more favorably than apparently the State
Department is willing to interpret right now.
Mr. BETTAUER. Well, as far as I know, the Burma settlement
with Japan states that Burma will supply by way of
reparations
The CHAIRMAN. Japan will supply.
Mr. BETTAUER. Japan will supply Burma by way of reparations
the services of Japanese people and products, the value of which
will be on the average equivalent toit says essentially $20 million
for a period of 10 years. And Japan also took every measure to fa-
cilitate economic cooperation.
Now, I am not sure that $20 million worth of services of Japa-
nese people was something equivalent to $90 million actual at the
time we got it, nor am I aware that that was something we would
have wished, the United States would have wished at the time.
Burma was a developing country at the time and it had been dev-
astated by the war.
Japans settlement with Burma was brought about, as I have just
said, with the encouragement of Dulles. In September 1954, he in-
formed the National Security Council that The big problem eco-
19
nomically for Japan was the question of reparations, particularly

with the Philippines, Indonesia, and Burma.
He added that he told Premier Yoshida to try to accept a rea-
sonable solution, such as the recent Burmese offer which appeared
to be a reasonable proposal. At the time, the U.S. Government was
trying to support Burma. The substantial aid package that came
with the Burma-Japan settlement relieved the U.S. taxpayer of a
substantial financial burden that would otherwise have been borne.
This was an advantage to us. So it is very hard to conclude that
the Burma settlement would provide a basis for us now to go back
to Japan.
The CHAIRMAN. Well, I have to say that it is wonderful that we
received some benefits because we didnt have to pay, but the fact
of the matter is that the treaty says:
Therefore, Japan agrees, subject to such detailed terms
as may be agreed upon, to supply the Union of Burma by
way of reparations with the services of Japanese people
and products of Japan, the value of which would be on an
annual average 7,200 million yen, equivalent to 20 million
United States American dollars, for the period of 10 years.
Japan agrees, subject to such detailed terms as may be
agreed upon, to take every possible measure to facilitate
economic cooperation wherein the services of Japanese
people and the products of Japan, the value of which will
aggregate on an annual average 1,800 million yen, equiva-
lent to 5 million United States American dollars, will be
made available to the government or people of the union
of Burma for the period of 10 years, and also agrees to re-
examine at the time of the final settlement of reparations
toward all other claimant countries the Union of Burmas
claim for just and equitable treatment in the light of the
results of such settlement, as well as the economic capacity
of Japan to bear the overall burden of reparations.
Then the next paragraph:
The Union of Burma shall have the right to seize, retain,
liquidate, or otherwise dispose of all property rights and
interests of Japan and Japanese nationals, including jurid-
ical persons, which on the coming into force of this treaty
were subject to its jurisdiction.
Well, it seems to me that we can go back to one of my original
questions, and that is how can our Government take away the
rights of individual citizens to sue individual companies, not the
Government of Japan, but individual companies in Japan, for rep-
arations for having been mistreated and having been forced into
slave labor? What is the justification? I mean, where is the legal
justification?
Show me a case that says that these veterans have no right to
go against the Japanese companies that exploited them and abused
them and made them slave laborers. This isnt against the Govern-
ment.
Mr. BETTAUER. No, no; I have mentioned some cases, and I think
we are at a point where we differ on this.
20
The CHAIRMAN. Well, I dont know of a case in point that says

that they have no right to sue those companies.
Mr. BETTAUER. The case in point for this actual treaty is cur-
rently being litigated, but the precedent is out there saying that
the United States has the ability to espouse and settle claims. And
we have done so multiple times over the last 200 years, often with
benefits, and here there are some. Although one would always like
to see more benefits, there are some benefits for former veterans.
I mean, in the postwar period there are probably 15 or 20 times
that we have done agreements with foreign countries and settled
claims of U.S. nationals, whether they have liked it or not. So this
is a well-established authority and it has been upheld by the
courts, and I am sure you will see some of that in the papers that
we have filed.
The CHAIRMAN. Well, let me turn to Senator Sessions for any
questions he might have.
Senator SESSIONS. Thank you, Mr. Chairman. If I were sitting in
an appellate court, I believe I would rule with you on this legal de-
bate.
The CHAIRMAN. Well, now, that is a pleasant thought, I will tell
you.
Senator SESSIONS. I was about to ask Mr. Ogden here if he would
rule with you, too, just as a third party. It does seem to me that
there is an opportunity for those to make these claims and it is not
precluded by the plain language of the statute.
I have a friend who survived the Bataan Death March. He has
shared some of the horrors with me. He speaks occasionally still in
schools around the State of Alabama, and it was a very bad thing.
It should not have happened.
Let me ask, Mr. Bettauer, do you concludeand I suppose it is
the State Department that would say thisdo you conclude that
the treatment, lets just say specifically in Japan of slave labor, vio-
lated the Geneva Accords, the Geneva agreement?
Mr. BETTAUER. My impression is that it did and that there were
war crimes committed. I am aware that there were war crimes
trials after the war and Japanese nationals were held accountable
and executed for their violations of the law of war, and indeed that
this treaty, the Peace Treaty, compels Japan to abide by the war
crimes decisions that were made.
Senator SESSIONS. With regard to our compensation of Japanese-
American citizens that were held against our American sense of
justice, that incarceration was upheld by the courts, was it not?
Mr. BETTAUER. You mean the
Senator SESSIONS. Internment in the United States of Japanese-
American citizens.
Mr. BETTAUER. I believe so, but I am not an expert on that.
Senator SESSIONS. Well, I guess my point is we have made com-
pensation to them even though it appears that courts have held
that it was a legal act.
Would you agree, Mr. Ogden, that it was upheld as a legal act?
Mr. OGDEN. Yes, Senator Sessions, that is my understanding.
Senator SESSIONS. Has there been any effort by the State De-
partment to encourage Japan to compensate these citizens who
21
were treated so badly even though there may be a dispute about

whether they are legally compelled to do so?
Mr. BETTAUER. The agreement settles the claims, Senator. And
we may have a disagreement about the details of the agreement,
but we have researched it thoroughly and we have gone through
the hearings that were held by the Senate Foreign Relations Com-
mittee at the time of the agreement and it seems abundantly clear
that there was even discussion of this issue, some concern ex-
pressed about it, but the decision to settle and resolve all the
claims.
Senator SESSIONS. Well, I would say this, frankly. Settling up
after a war is not an easy thing.
Mr. BETTAUER. Right.
Senator SESSIONS. People have to give and take and reach an
agreement that is going to bind forever. And nobody can anticipate
completely what kinds of claims might occur in the future, and we
are probably in the long run better off following the agreement
than trying to get around the agreement.
Certainly, our partnership with Japan has been a great thing for
America, and I believe the world. Their economic growth has been
good, but my question is could they not be urged in the light of
their economic progress and strength, whether they are legally re-
quired or not, to consider compensating these people who suffered.
Mr. BETTAUER. Well, I mean it is possible to urge, but our treaty
commitment and the object and purpose of the treaty was to re-
solve these claims. And it would be trying to find a back door to
go around the treaty commitment to say, look, we know we agreed
with you that we have resolved and settled all these claims, and
yet you should pay some more anyway. That is not in keeping with
a good-faith abidance by the treaty terms.
The CHAIRMAN. We are not asking the Government to pay. We
are asking the companies that did the acts to pay, and to pay indi-
vidual American citizens who were abused and mistreated and
forced into slave labor. Some of these companies are multi-billion-
dollar companies today which might not be multi-billion-dollar com-
panies today had it not been for forced labor during that period of
time. That is the difference.
I would like the State Department to go back and reassess this
because I think your arguments are ridiculous. You are clearly a
very bright man and you clearly have been sent up here as a sac-
rificial lamb, it seems to me. I mean, I dont know how in the world
you can come in here and make these arguments like this. Now,
if you can show me where the Federal Government has a right to
just strip people of rights against individual private companies that
abuse them, that is another matter, but I havent seen anything,
nor do I believe there is anything that exists. And, Mr. Ogden, I
think you ought to reassess this because your opinion is very
broad, way too broad, and frankly it is just not right.
Look, I am just a poor little country lawyer here, but I want you
both to go back and I want Mr. Pickering to reassess this. I mean,
this is ridiculous. Especially in light of what is happening in Eu-
rope, I mean this is absolutely ridiculous. Your opinions, in my
opinion, are not accurate. I am trying to be nice.
22
Senator SESSIONS. Mr. Chairman, thank you for having this

hearing and for raising these issues. They are unpleasant, but I
hope not damaging to our relationship with Japan, but a part of
a healing process where we can recognize the bad things that did
happen and we can confront them in this modern age. In the long
run, I am confident it will make us stronger.
Thank you.
The CHAIRMAN. Well, thank you.
Senator Grassley, we will go to you, but you had a comment you
wanted to make, Mr. Ogden, before I turn to Senator Grassley.
Mr. OGDEN. Thank you, Mr. Chairman. What I wanted to say
was that I appreciated your remarks, and I certainly will go back
and take another look at the
The CHAIRMAN. I really want you to do this. Our Japanese
friends realize this was a terrible set of situations. I mean, these
companies are not poverty-stricken companies; it is not going to
bankrupt them. They really ought to, out of good faith, reassess
this situation. And I think the Justice Department ought to reas-
sess it, and certainly the State Department lawyers ought to reas-
sess this because I think any interpretation of constitutional law
flies in the face of what you are arguing here today.
Now, I appreciate your position and I dont mean to pick on you
unduly, but I do intend to pick on you some more.
Mr. BETTAUER. But I would say that we do take our guidance on
constitutional law issues from the Justice Department.
The CHAIRMAN. Oh, that is good. Now, we know who is the real
culprit here. [Laughter.]
Mr. BETTAUER. They talk to us about treaty interpretation
issues, you see, so we cooperate.
The CHAIRMAN. I understand. You are doing the best you can,
but it is not good enough. I think you ought to go reassess this, I
really do.
Let me turn to Senator Grassley.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR
FROM THE STATE OF IOWA
Senator GRASSLEY. Well, first of all, I apologize to the panel for
not being here for your testimony because I, as Senator Hatch, had
to be for a short period of time in markup of the marriage penalty
bill down the hall in the Finance Committee. But I do feel that in
the little time I have been here, Senator Hatch has laid out very
strongly the position that I hold, and I thank him for doing it.
I would just simply relate that even though there are just a
small number of these people affected that live in my State of
IowaI understand that we have 33 living former POWs of Japan,
18 POW widows or next of kin, 7 civilian internees, and 1 civilian
internee widowit is still very important that we make sure that
justice is done.
These individuals obviously support these hearings because they
want to see that the United States turns the same scrutiny on
Japan as we did on Germany. I believe I am in agreement with
that position even as forcefully as it was expressed by Senator
Hatch that you review our policy. And I believe that this committee
does a great service, then, for the people that we owe so much to
23
in World War II, particularly those that suffered the most by being
prisoners, that we would through this committee try to redirect
U.S. policy in regard to this matter and see what we can do to
make sure it is consistent.
I think the issue has already been discussed and so I will not be
asking any questions. However, I will make a statement that I
think we need to review our policies; that when we send letters in
opposition to the position of some victims of World War II, those
who were slave labor victims in Japan, but not do that in the case
of slave labor victims in Germany, that we do not appear to have
a consistent policy. It seems blatantly unfair, and not something
that makes the American Government look good to its citizens. And
I am not sure that it even sends a very clear signal about our lead-
ership in the world community of nations, about the moral leader-
ship that we ought to have.
Thank you, Mr. Chairman.
The CHAIRMAN. Thank you, Senator.
Senator Feinstein has another question.
Senator FEINSTEIN. Thank you, Mr. Chairman. I would like to in-
troduce for the record a statement by Senator Leahy.
The CHAIRMAN. Without objection, we will place that in the
record.
[The prepared statement of Senator Leahy follows:]
PREPARED STATEMENT OF SENATOR PATRICK LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
I would like to begin my remarks by thanking all of our witnesses for coming
today, especially those of you who were taken prisoner during the Second World
War. All Americans should honor your sacrifice, and should be made aware of the
inhuman conditions you were forced to endure. For that reason alone, I think it is
valuable that we have this hearing today.
I am very sympathetic to the claims being advanced by the former prisoners of
war appearing before us today. They were treated with utter contempt and in viola-
tion of the laws of war. Having said that, I am aware that the litigation raises com-
plex issues involving our foreign policy powers and obligations that our courts are
in the process of resolving. As such, it would be inappropriate for me or for this
Committee to prejudge the merits of those legal issues. So I will simply say that
you have my sympathy and my attention.
I do fear that the majoritys concern about this litigation does not extend to litiga-
tion brought by other Americans looking to redress wrongs through our States civil
justice systems. We hold this hearing in the midst of our Committees consideration
of the so-called Class Action Fairness Act, which would drastically reduce plaintiffs
access to State courts, instead forcing them into federal court. It is therefore some-
what surprising that the majority has called representatives of the Justice and
State Departments here this morning to answer for their legal opinion that the
plaintiffs in these prisoner of war lawsuits belong not in State courts but in federal
court.
I also find it somewhat ironic that we are holding this hearing so soon after the
majority fought so hard against the nomination of Judge Richard Paez to the Ninth
Circuit Court of Appeals. The U.S. Chamber of Commerce, one of Judge Paezs most
influential detractors, based its opposition to Judge Paez solely on a preliminary rul-
ing he authored in the case of John Doe I v. Unocal. In that ruling, Judge Paez
merely turned down Unocals motion to dismiss a case brought against it based on
its activities in Burma, a notorious abuser of human rights. Even this early ruling
which still left open the possibility that Unocal would win summary judgment in
the casewas seen as too anti-business and pro-human rights by the same ma-
jority that today holds this hearing to show support for the litigation brought by
plaintiffs protesting human rights abuses by Japanese corporations.
As legitimate as these concerns are, however, I do not believe that they should
overshadow the testimony and the experiences of the witnesses who are here before
24
us today. I simply hope that we show consistent solicitude for others who seek ac-
cess to our courts.
Senator FEINSTEIN. Let me see if I understand this. If I under-
stand this, Mr. Bettauer, you were saying that John Foster Dulles
apparently made some agreement that there would be no prosecu-
tion of individual claims. You say that that is binding. Now, that
may be a policy matter that was handled at the time.
When Senator Hatch asked you about a case in point, you said,
well, the case in point is being litigated at the present time. From
that, I would deduce that the legal question has not been finally
resolved as to whether this treaty can, in fact, prevent any Amer-
ican from exercising their right to litigate for damages.
Mr. BETTAUER. If I may, I was trying to say that these individual
claims are currently being adjudicated. So if you ask for something
exactly on point, you dont have a decision.
Senator FEINSTEIN. Right.
Mr. BETTAUER. But there is ample authority for the proposition
that the executive branch or the President may espouse and settle
claims of U.S. nationals, and the treaty does that and it became
U.S. law. It is not just done as a policy matter, but it was given
advice and consent and ratified, and therefore has become part of
the law of the United States.
There were hearings on this exact issue before the Senate For-
eign Relations Committee at the time, and there was a back-and-
forth about whether this was a desirable thing to do. And the com-
mittee at the time and the Senate at the time decided to do that,
and therefore the treaty was ratified.
The CHAIRMAN. But isnt it true, Mr. Bettauer, that as a matter
of law nation states do not own the claims of their nationals arising
under domestic law? Consequently, how could the United States
waive domestic law claims that it did not own? In other words,
isnt the better reading that the United States waived the claims
it owned, namely only the international claims of its own citizens,
not the individual claims of the citizens?
Mr. BETTAUER. The treaty says claims againstit says other
claims of their nationals arising out of any action taken by Japan
and its nationals.
The CHAIRMAN. I agree it has that language, but
Mr. BETTAUER. It doesnt limit it to claims arising under one or
another system of law. When claims have an international char-
acter, there is precedent. And I mentioned when we normalized
with the Soviet Union back in 1933, it generated a series of cases
that said that the United States may take and settle claims, and
they are very famous cases. This was all reviewed in the case that
I mentioned concerning the Iran hostage crisis. So it is not some-
thing that is new.
The CHAIRMAN. I am aware of settling claims against countries.
What I am talking about is settling claims against companies, not
countries.
Senator FEINSTEIN. But if I understand what he is saying, he is
saying that because the treaty has this language and this language
was discussed by the Foreign Relations Committee of the Senate,
and yet the treaty was adopted by the Senate, that therefore it ab-
solves any further claims.
25
The CHAIRMAN. Yes, that is what he is saying.

Mr. BETTAUER. It becomes part of U.S. law, yes. The treaty,
under the U.S. Constitution, is the supreme law of the land, along
with statutes.
The CHAIRMAN. That is right, and it doesnt say anything about
private claims against private companies brought by individual citi-
zens who have a right to bring them.
Mr. BETTAUER. Yes, it does, Senator.
The CHAIRMAN. Yes? Point it out to me.
Mr. BETTAUER. I think we are going in circles because I think
you
The CHAIRMAN. Well, let me do this. I would like the both of you
to reassess this. I would like you to assist the committee more be-
cause I dont see that. I see how you are interpreting it in a broad
way. I think, Mr. Ogden, your legal interpretation is too broad, but
I would like you to reassess this.
I also think that it is important for you to meet with the rep-
resentatives of these individual claimants. I think, in all fairness,
you should meet with the representatives of the POWs.
Mr. OGDEN. Mr. Chairman, we would certainly welcome the op-
portunity to do that. We always are willing to meet with litigants
in matters of this nature, and in this case that would be particu-
larly so. We would be pleased to do that.
I think on the question of the meaning of the treaty, at your sug-
gestion, we will go back and take another look. I will say that we
have not taken this lightly to this point and have put an enormous
amount of work in.
The CHAIRMAN. But you have taken a broad-brush interpretation,
but in a very narrow way.
Mr. OGDEN. Our view, having looked at the history and reviewed
the language, is that it was the intent of the United States in the
treaty to waive national-against-national claims.
The CHAIRMAN. I dont doubt that, but that doesnt waive individ-
ual rights. That is the problem.
Mr. OGDEN. You have raised, I think, a further point today,
which is the question whether, if the United States has done that,
it was a constitutional act. At least that is what I hear your ques-
tion being, whether it was a taking of property without just com-
pensation under the fifth amendment.
That is a separate issue. It has to do with whether there would
be claims against the United States arising out of the operation of
the treaty. I think I will go back and take a look at that.
The CHAIRMAN. It is more than just possible claims against the
United States. It is that if those are property rights, then the
United States cannot waive them. In other words, these people still
have the right to bring them, and again not against the Govern-
ment of Japan, which the treaty supersedesthe treaty is the
highest law of the landbut against the individual companies that
exploited these people.
Well, you have both agreed to reassess and go back and give us
the benefit of your wisdom. You are both very bright people. I be-
lieve you are both very good men, and I would like to have you re-
assess this and I would like Mr. Pickering to reassess this. And I
think he ought to come when we invite him next time. I hope you
26
will send that message to him. We have been friends for a long
time, but when the Judiciary Committee wants witnesses from the
State Department, we want them here. And unless they have a
good excuse, we dont think they just stiff the committee.
Senator SESSIONS. Mr. Chairman, would he also respond to the
chairmans inquiry about other nations, that escape valve clause
and why that wouldnt apply?
The CHAIRMAN. Well, that is right.
Senator SESSIONS. If Burma gets special privileges, why not
American citizens? I would like you to address that question, also.
The CHAIRMAN. Well, that is all part of this, and that is a very
good point that you are making.
Mr. OGDEN. Would you like me to address it now, or are you ask-
ing us to go back and do it?
The CHAIRMAN. We would like you, in your reassessment, to take
that into consideration that individual Burmese were compensated,
and in that particular case, I believe, by the treaty and by the gov-
ernment. Under 26, it seems to me that opens the door for our
POWs as well.
But we will look forward to getting more advice and counsel from
you, OK?
Mr. BETTAUER. Yes.
The CHAIRMAN. All right. Well, thank you so much. We appre-
ciate both of you being here.
Mr. OGDEN. Thank you.
The CHAIRMAN. I am very pleased to now introduce the witnesses
on our second panel. We are very fortunate to have a distinguished
group of former POWs, as well as Prof. Harold Maier from the
Vanderbilt School of Law.
Let me say that our panel of POWs is representative. In prepar-
ing for these hearings, we have heard from many remarkable indi-
vidualsformer POWs, family members, scholars and activists
who work on veterans issues. The men before us today are rep-
resentatives of all the POWs, their families, and those who have
struggled on their behalf. I know we have a number of former
POWs and family members in the audience, some of whom trav-
eled great distances to be here today, and we deeply appreciate
your presence here today.
Let me introduce the panel. Mr. Harold Poole is from Salt Lake
City, UT, and served in the 20th Pursuit Squadron of the Army Air
Corps in the Philippines. Mr. Poole earned a Silver Star for valor
in combat during the intense fighting that broke out after Pearl
Harbor. Following his capture and survival of the Bataan Death
March, Mr. Poole was shipped to Japan and forced into labor for
Nippon Steel.
Frank Bigelow currently resides in Brooksville, FL. He is a Navy
veteran who once served aboard the U.S.S. Arizona. After being
transferred to the Philippines, he was eventually captured by the
Japanese in May 1942. Mr. Bigelow survived the horrific journey
to Japan aboard the hell ships and was eventually taken to Omuta
Camp 17, where he was forced to work in a coal mine operated by
the Mitsui Mining Co. Beaten and tortured, Mr. Bigelow eventually
lost a leg from the dangerous conditions of the mine.
27
Maurice Mo Mazer now hails from Boca Raton, FL. After sur-
viving the Bataan Death March, Mr. Mazer was shipped to Japan
and forced to labor for Mitsubishi in copper and smelter mines. He
has been active in veterans organizations and is a former Com-
mander of the American Defenders of Bataan and Corregidor.
Dr. Lester Tenney is a retired professor from Arizona State and
San Diego State Universities. In 1941, he joined the Illinois Na-
tional Guard and was sent to the Philippines, where he was even-
tually captured. Dr. Tenney was also forced into labor in the coal
mines of Japan. He has written a fascinating book of his experi-
ences entitled My Hitch in Hell, which is an inspiring account of
the indomitable human spirit. It demonstrates how these remark-
able men pulled together and helped each other make it through
their ordeal. I highly recommend it to all of you.
Ed Jackfert is the National Commander of the American Defend-
ers of Bataan and Corregidor, a national veterans organization de-
voted to the men who served there. Mr. Jackfert is a veteran of the
Army Air Corps and is himself a former POW held by the Japa-
nese.
Finally, we are pleased to have with us a very distinguished
legal scholar, Prof. Harold Maier, of the Vanderbilt School of Law.
Professor Maier is an expert in international law and has studied
the 1951 Peace Treaty with Japan.
We welcome all of you here today. Before we hear opening state-
ments from our panel, I would like to recognize some of the organi-
zations which are represented here today and who have expressed
support for the committees efforts. If you are representing a group,
please rise at the time I mention your name.
We are pleased to have representatives from the VFW, the Amer-
ican Legion, the American Ex-POWs, the American Defenders of
Bataan and Corregidor, the Center for Internee Rights, U.S.S.
Houston Survivors, Philippine Scouts Heritage Society, Jewish War
Veterans, the Disabled American Veterans, and Admiral Nimitz
Museum. All of you are here. We are grateful to have you here and
we welcome you before the committee. Thank you very much. [Ap-
plause.]
Many other organizations, such as the Simon Wiesenthal Center,
could not be here today, but have expressed support for the com-
mittees efforts, and those statements will be made a part of the
record.
So we thank all for your participation here today.
Lets turn to Mr. Poole at this time.
28
PANEL CONSISTING OF HAROLD W. POOLE, FORMER WORLD
WAR II PRISONER OF WAR IN JAPAN, SALT LAKE CITY, UT;
FRANK BIGELOW, FORMER WORLD WAR II PRISONER OF
WAR IN JAPAN, BROOKSVILLE, FL; MAURICE MAZER,
FORMER WORLD WAR II PRISONER OF WAR IN JAPAN, BOCA
RATON, FL; LESTER I. TENNEY, FORMER WORLD WAR II
PRISONER OF WAR IN JAPAN, LaJOLLA, CA; EDWARD
JACKFERT, FORMER WORLD WAR II PRISONER OF WAR IN
JAPAN, AND COMMANDER, AMERICAN DEFENDERS OF BA-
TAAN AND CORREGIDOR, INC., WELLSBURG, WV; AND HAR-
OLD G. MAIER, PROFESSOR OF LAW, VANDERBILT UNIVER-
SITY, NASHVILLE, TN
STATEMENT OF HAROLD W. POOLE
Mr. POOLE. Good morning, Mr. Chairman and members of the
committee, and thank you, Senator Hatch, for your kind remarks
in introducing me.
As previously indicated, my name is Harold Wood Poole. I am an
81-year-old widower living in Salt Lake City, UT. I have a son and
a daughter and nine grandchildren. I retired 20 years ago from the
U.S. Postal Service, having served 30 years as a letter carrier.
In 1940, I volunteered in the U.S. Army Air Corps. After a brief
period of training in California, my unit, the 20th Pursuit Squad-
ron, was shipped out to the Philippine Islands. I was assigned to
the armament section and worked on the guns of our planes.
Life in the Philippines was initially quite pleasant until war
broke out. I was stationed at Clark Field, northwest of Manila.
Waves of Japanese planes bombed the field, going after our planes
and munitions. I will simply say, hoping not to appear immodest,
that I received the Silver Star for valor in combat for my action in
shooting down a Japanese plane that day.
After holding the invading Japanese at bay for 4 months, the de-
cision was made to surrender the U.S. forces. We were cut off, out
of food, ammunition, medicine, and supplies. I will tell you it was
a bleak day. Many bleak days followed312 years, to be exact. The
Japanese guards continually berated us as cowards for surrender-
ing, saying that we disgraced our country, ourselves, and our fami-
lies, and didnt deserve to be alive.
They refused us the dignity of the title prisoner of war. Rather,
they referred to us as captives, and as such we had no rights.
There were 200 members in our squadron who surrendered, and
only 50 of them came home. Out of those 50, there are just a couple
over 20 left.
I was shipped to Japan in one of the so-called hell ships. Having
survived the death march and the hell ships, my greatest challenge
was still ahead20 months of forced slave labor for Nippon Steel
Corp. We worked 7 days a week, 10 hours a day. We were starved,
beaten, and abused. We suffered disease, deprivation, and depres-
sion. I nearly died twice, once from malaria in the Philippines and
the other time from pneumonia in Japan.
We suffered from dysentery, beriberi, scurvy, pellagra, and jaun-
dice, and a lot of these diseases were resulting from starvation ra-
tions which we had to put up with. If you became too ill to work,
these already meager rations were further cut in half. Before the
29
war broke out, I weighed 180 pounds, and when we were finally
liberated I weighed 97 pounds.
We worked at Nippon Steel doing heavy labor. Sometimes, we
unloaded freight cars, worked to supply a blast furnace, or un-
loaded ships. If you didnt work hard or fast enough, you were beat-
en. For a long time, we were not allowed to receive or send mail.
It was 2 years before my mother even knew whether I was dead
or alive.
I mentioned previously that only 50 of us came home from the
war. I have often wondered why I survived and why so many of my
buddies did not. Obviously, these are questions whose answers are
ultimately known only to God, but I attribute my survival to Him.
I am a religious man and I believe my Heavenly Father heard and
answered my prayers while I was a prisoner of war. My faith in
Him and my country gave me the strength to hang on when there
was nothing else to hold on to.
Now, over 50 years later, I think I know why my life was pre-
served. I am here today to speak not only for myself, but for all
those young men who never came home. I am here to ask for your
help as I seek justice not only for me, but for all of us who served
and suffered, both living and dead. Justice has long been delayed,
but it was not be denied.
I am skipping over a little of it that has been covered already,
Senator Hatch, by your explanation in your first presentation.
So what I simply ask today, Mr. Chairman, is for your aid and
assistance in helping us right this wrong. If the United States is
not going to support us, then for heavens sake they should not op-
pose us. I have confidence and trust in our American system of jus-
tice. I know if you will just allow us our day in court, our cause
will speak for itself. As for me and my buddies, I will speak for
those who are no longer here to speak for themselves. Please help
us have that opportunity.
Thank you. I would be happy to respond at the appropriate time
to any questions you may have.
[The prepared statement of Mr. Poole follows:]
PREPARED STATEMENT OF HAROLD W. POOLE
Good Morning Mr. Chairman, and members of the Committee. And thank you
Senator Hatch for your kind remarks in introducing me. As previously indicated, my
name is Harold Wood Poole. I am an 80-year-old widower living in Salt Lake City,
Utah. I have a son and a daughter, and nine grandchildren. I retired 20 years ago
from the United States Postal Service, having served 30 years as a letter carrier.
As a young man many years ago, I joined the United States Army in 1940. After
a brief period of training in California, my army air corps unit, the 20th Pursuit
Squadron, was shipped out to the Philippine Islands. I was assigned to the arma-
ment section, and worked on the guns on our planes. Life in the Philippines was
initially quite pleasant until war broke out.
I dont have to tell you anything about Pearl Harbor. It is all well known and well
documented history. But what is not so well known was the Japanese attack on the
Philippines the day after Pearl Harbor. I know, I was there. I was stationed at
Clark Field, northwest of Manila. Waves of Japanese planes bombed and strafed the
field, going after our planes and munitions. I will simply say, hoping not to appear
immodest, that I received the Silver Star for Valor in Combat for my actions in
shooting down a Japanese plane that day. But I did not receive that medal until
after the war, and a lot happened in between. Thats what I want to tell you about
today.
After holding the invading Japanese at bay for four months, the decision was
made to surrender the U.S. forces. We were cut off, out of food, ammo, medicine and
30
supplies. I will tell you it was a bleak day. Many bleak days followed. 312 years
to be exact. The Japanese guards continually berated us as cowards for surrender-
ing, saying that we disgraced our country, ourselves, and our families, and didnt
deserve to be alive. They refused us the dignity of the title, Prisoner of War. Rath-
er, they referred to us as captives, and as such, we had no rights.
You have all heard about the infamous Bataan Death March. Well, I lived it. Six
days and nights of pure hell. We were already weak and ill before we began. We
walked in stifling tropical heat, without water, food or adequate rest. We were prod-
ded along by bayonets, and, if you failed to move fast enough, you were run through
with the bayonet. I lost a lot of buddies on the march. I lost a lot more over the
next 312 years. Two hundred members of my squadron surrendered. Only 50 ever
came home. There are now only about 20 of us left. I was shipped to Japan in one
of the so-called hell ships. Having survived the Death March and the hell ships,
my greatest challenge was still ahead. Two years of forced slave labor for Nippon
Steel Corporation. We worked 7 days a week, 10 hours a day. We were starved,
beaten and abused. We suffered disease, deprivation and depression. I nearly died
twice, once from malaria, the other time from pneumonia. We suffered from dys-
entery, beriberi, scurvy and pellagra. Many of these diseases resulted from surviving
on starvation rations. If you became too ill to work, these already meager rations
were further cut in half. Before the war broke out, I weighed 180 pounds. When
we were finally liberated I weighed 97 pounds.
We worked at Nippon Steel doing heavy labor. Sometimes we unloaded freight
cars, worked to supply a blast furnace, or unloaded ships. If you didnt work hard
or fast enough, you were beaten. For a long time, we were not allowed to receive
or send mail. It was several years before my mother even knew whether I was dead
or alive. But with all due respect, most of what we experienced and lived through
cannot be fully or adequately described. Suffice it to say, you had to be there.
I mentioned previously that only 50 of us came home from the war. I have often
wondered why I survived and why so many of my buddies did not. Obviously, these
are questions whose answers are ultimately known only to God. But I attribute my
survival to Him. I am a religious man, and I believe my Heavenly Father heard and
answered my prayers while I was a prisoner of war. My faith in Him, and my coun-
try, gave me the strength to hang on when there was nothing else to hold on to.
And now, over 50 years later, I think I know why my life was preserved. I am here
today to speak not only for myself, but also for all those young men who never came
home. I am here to ask for your help as I seek justice not only for me, but for all
of us who served and suffered, both living and dead. Justice has been long delayed,
but it must not be denied.
I am currently a plaintiff in a lawsuit seeking justice. I am not alone. Other POW
survivors are involved as well. Our lawsuit is not against the Japanese Govern-
mentnor the Japanese people. I have long since forgiven them. Indeed, as a prac-
ticing Mormon, I sent my son to Japan for two years to serve as a missionary. We
are all Gods children.
But forgiveness does not eliminate the demands of justice. My lawsuit is against
Nippon Steelthe corporation which benefited directly from my forced slave labor.
I want the world to know what happened to me and my fellow soldiers who were
forced to work under such despicable conditions for Nippon Steel.
I am not a lawyer, but my attorneys tell me that a similar lawsuit such as mine
was brought in New Jersey by survivors of the Holocaust. Many of them were slave
laborers as well. In that case, I am told, the Department of Justice was requested
to submit the position of the United States concerning the suit. The Department of
Justice took no position. But now I am told that the Department of Justice has
taken a position opposing our right to bring suit and to seek justice for the Pacific
survivors of forced slave labor. I acknowledge that I am not educated in the law
but I think I know what is fairand what is right. And I am here to respectfully
tell you that it is neither fair nor right for the United States Government to take
such a position against American soldiersalbeit over 50 years laterwho when
called upon so many years agofaithfully answered their countrys call.
So what I simply ask today, Mr. Chairman, is your aid and assistance in helping
us right this wrong. If the United States is not going to support us, then for heaven
sakes, they should not oppose us. I am told that there are very strong legal argu-
ments why we should be allowed our day in court. Obviously, I believe there are
equally strong equitable reasons as well. I have confidence and trust in our Amer-
ican system of justice. I know if you will just allow us our day in court, our cause
will speak for itself. As for me and my buddies, I will speak for those who are no
longer here to speak for themselves. Please help us have that opportunity.
Thank you. I would be happy to respond at the appropriate time to any questions
you may have.
31
The CHAIRMAN. Thank you.

Mr. Bigelow.
STATEMENT OF FRANK BIGELOW
Mr. BIGELOW. I want to thank you for allowing me to speak to
you today. I want to give special thanks to Senator Hatch, from
Utah, for his efforts. I am Frank Bigelow, formerly seaman second
class. I am now 78 years old and residing in Brooksville, FL. I am
here to speak for the POWs from World War II.
Bullets, exotic diseases, and starvation couldnt kill us. Neither
could 2 years of slave labor, being beaten, nearly beheaded, by the
masters we were forced to serve. It is that strength that brings me
here today. Justice is long overdue for the thousands of World War
II veterans.
No doubt, you have heard of Omuta Camp 17, where your fa-
thers, sons, and brothers were forced to do hard labor. We were de-
fending a beach on Corregidor when thousands of Americans and
Filipino troops were taken prisoner by the Japanese. I knew right
then that I was going to make it. When they hauled down the
American flag, ground it into the Earth, urinated on it, it made me
sick, and we held a lot of guys back to keep them from fighting the
Japanese because they would have had their heads cut off imme-
diately.
I loved my flag and I loved my country. I was 20 years old and
half a world a way from my home in North Dakota. I contracted
malaria, jaundice, diarrhea, and dysentery all at the same time,
and I forced myself to eat charcoal to save my life.
After a year, the Japanese asked for 500 POW volunteers to go
to another camp, and after 3 weeks at sea we found ourselves in
Omuta, Japan. That was August 1943, Camp 17. Everyday the
Japanese Army delivered us to a coal mine owned by Mitsui, one
of the biggest business conglomerates in Japan, and we were their
slave labor. Mitsui Mining was right up there in front and we were
told to work or dielong hours, short rations. Usually, tiny por-
tions of rice and seaweed soup could barely sustain us as we were
doing physical, heavy labor. I was skin and bones, and at 6 foot,
4 inches, I weighed just 95 pounds.
We worked as many as 27 days straight and we were beaten
badly. Since my bones were so brittle from malnutrition, one night
when a huge rock fell on my leg it broke my bones like old dead
twigs. There was another American POW, Dr. Thomas Hewlett. He
improvised with two sharpened bicycle spokes, one through my
knee and one through my ankle. It didnt work. Eventually, I got
gangrene, and due to lack of choice, since we had no medical sup-
plies, much less surgical supplies, we had to do what was called a
guillotine operation.
He had a hacksaw blade and a razor blade, some knives, and
four guys holding me. He resorted to a primitive method to battle
the growing infection. He put maggots inside the bandage, and
when he took them out and pulled out the infection, that man
saved my life and my legthe rest of my leg, I should say.
Japan surrendered, and at the age of 24 I left that prisoner of
war camp thinking only of my freedom in America. Former Navy
and Marine prisoners of war were shipped to Guam, and when we
32
reached Guam Navy intelligence officers took us one on one into

rooms. We were each handed a paper headed Restricted. I have
that right here. This subject was restricted, Publicity in Connec-
tion with Liberated Prisoners of War. We were told to read and
sign and keep our mouths shut, and I am just putting that politely.
We were young, we were scared, and yearning to get home. We
would have signed almost anything to do this.
And what do I think the company owes us? My leg, a couple of
years of our lives, and at least miners wages for what we did. Most
of all, they owe us an apology. It was war time, and as prisoners
of war we were supposed to be treated humanely, fed, given a de-
cent place to live, and medical treatment. We received absolutely
none of these.
If our lawsuits go to trial against the biggest and richest compa-
nies in the world, Mitsubishi, Nippon and Mitsui among them, we
hope that photos taken by Terence Kirk will help our case. Terence
built his own camera and he took six pictures. That is all he got
away with. We want to use them as evidence against the Japanese
who enslaved us, industrialists whose companies used prisoners of
war as slave labor and were never tried. The photos were never
used. We feel it is only fair to hold these companies accountable.
In closing, may I say protect your freedom and your flag with
your life, if it is necessary. It is the most important thing any
American will ever have.
Thank you.
The CHAIRMAN. Well, thank you, Mr. Bigelow. We appreciate
your testimony very much.
We will go to you, Mr. Mazer. We are happy to have you here.
STATEMENT OF MAURICE MAZER
Mr. MAZER. Good morning, Senator Hatch.
The CHAIRMAN. Good morning.
Mr. MAZER. My name is Maurice Mazer. I am one of the sur-
vivors of the Bataan Death March and 42 months imprisonment
in various camps, both in the Philippines and Japan. I was proud
to serve as the National Commander of the American Defenders of
Bataan and Corregidor for 1952 and 1953.
I thank you for holding this hearing on our behalf today to call
attention to those who served in the Pacific during World War II
and were captured by the Japanese. We became slave laborers of
private Japanese companies after our surrender and suffered un-
speakable torture under our captors. Our Government has never
recognized our sacrifice, and the Japanese companies who enslaved
us have never compensated us. Further, we have never been com-
pensated by our Government and have not received an apology
from anyone. We deserve closure.
I was imprisoned in Hanawa Camp in Japan. Each morning, the
Japanese soldiers turned me and my fellow prisoners of war over
to the guards for Mitsubishi Mining, a private company which
enslaved us for its own profit and forced us to work in its copper
mines and smelter mines. I was beaten unmercifully by the
Mitsubishi guards and had my back broken in the mines when one
of the guards ran a car carrying a mine operative into me, slam-
ming me against the wall of the mine. Today, I suffer numerous
33
health problems directly attributed to the time I spent as a slave

laborer.
It is absolutely unconscionable that our Government has award-
ed reparations to Japanese-American citizens who were in the
United States relocation camps during World War II, many of
whom were proven to be spies and Japanese sympathizers, and has
ignored the plight of its military men and women who were
enslaved by the Japanese. It is incomprehensible to me that our
Justice Department has taken a position against our American
prisoners of war who became slave laborers at the hands of private
Japanese companies during the war.
At the same time, the Justice Department made a conscious deci-
sion not to interfere with claims pending on behalf of the Holocaust
survivors. Those of us interned by Mitsubishi, Mitsui, Nippon,
Ishihara Sangyo, and many other Japanese companies suffered our
own holocaust and this has never been recognized. This terrible in-
justice needs to be rectified as soon as possible. We, who are the
victims, are old and dying off. We have waited too long for our pri-
vate hell to end. It is a time for closure.
Thank you for having this hearing. I appreciate your efforts to
rectify injustices that I and those I was imprisoned with had to en-
dure. I hope that through your efforts, I and those I was enslaved
with will find our peace.
Thank you.
The CHAIRMAN. Well, thank you, Mr. Mazer.
We have a vote on and there are only about 5 minutes left for
me to get there. I think what I will do is recess for just a few min-
utes so I can go vote, because I would like to hear the whole testi-
mony. Of course, if Senator Sessions comes back, he will continue
the testimony.
You will be next, Dr. Tenney, and if you dont mind waiting, I
dont have any choice; I need to get over there and vote. So we will
recess until I can get back or Senator Sessions gets here.
[The committee stood in recess from 12:04 p.m. to 12:30 p.m.]
The CHAIRMAN. I apologize for the delay, but that is the best we
can do when we have votes around here.
We will turn to you, Dr. Tenney. I am sorry that you had to wait
to give your testimony until now.
STATEMENT OF LESTER I. TENNEY
Mr. TENNEY. Mr. Chairman, members of the committee, in early
1942, along with 12,000 other Americans who were fighting and de-
fending our country on the Bataan Peninsula, I was promised sup-
plies, food, and reinforcements by our Government. As history
shows, that promise was never fulfilled.
During one of President Roosevelts fireside chats made in Feb-
ruary 1942, as we sat in our tanks we listened to him say that in
every war there are those who must be sacrificed for the benefit
of the whole war effort. We suddenly realized he was talking about
us. We were being sacrificed and abandoned for the benefit of the
overall war effort.
Well, Senators, we were well able to do that. After all, we were
proud young men and women serving our country, and we took an
oath to protect our country at all costs. Then on April 9, 1942, Ba-
34
taan surrendered. We then found ourselves prisoners of war. I

would like to take just a moment to share with you what it was
like being a prisoner of war of the Japanese.
First of all, you are stripped of every human right you thought
you had. You are constantly reminded of the fact that you are cow-
ards, that you are lower than dogs, that you have no rights whatso-
ever. You are humiliated beyond belief, and your faith and morals
are challenged on a daily basis. Sickness and diseases like dys-
entery, malaria, beriberi, scurvy, and pellagra run rampant in your
body. Beatings become an everyday occurrence, and you are de-
prived of adequate food. You can see that picture there, Senator.
That is what we looked like.
Well, here we are, 58 years later, and we are once again in-
formed that we are being sacrificed and abandoned by our own
Government, but this time not for the war effort, but instead for
the benefit of those large Japanese industrial giants who profited
from our slave labor. I once again feel that I have been taken pris-
oner, but this time by my own country. I have been able to take
the beatings, but now I have to take the beatings with words from
our own country.
How has this come to be? Well, the California legislature, as was
mentioned earlier, unanimously passed a statute that was enacted
into law allowing claims for compensation for those veterans who
were used as slave laborers to go forward in the courts, irrespective
of the running of the statute of limitations. Pursuant to this law,
I, along with many of my former POW friends who were enslaved
by Japanese companies during World War II, have since filed law-
suits seeking reparations, equality, and justice.
Shockingly, the U.S. Department of Justice has recently filed a
court submission, the effect of which would nullify the action of the
California legislature. Why is it, then, that the Justice Department
at the same time had taken a hands-off position with regard to the
same treaty issues as in the German Holocaust case?
The actions of the Justice Department and the State Department
is incomprehensible to me, to allude to the fact that our State De-
partment places more emphasis on the documents of the treaty
than on the actual treaty itself. I am speaking as one of the sur-
vivors of the infamous Bataan Death March and over 312 years as
a prisoner of war. Ultimately, I was taken to Japan on a hell ship.
Once there, I became a slave laborer in a Mitsui coal mine. I was
forced to shovel coal 12 hours a day, 28 days a month, for over 2
years.
And the reward I received for this hard labor? Beatings by the
civilian workers in the mine, and the reason for the beatings were
because I did not work fast enough, did not shovel enough coal that
day, or because the Americans won an important battle. We got to
know how the war was progressing by the frequency and severity
of the beatings. And, of course, the beatings were usually with pick
axe, hammer, chains, or whatever the Mitsui overseer was able to
get in their hands.
Now, I, along with many of my former POW friends, are seeking
justice from the Japanese companies that placed us into servitude,
and they took pleasure in our humiliation. Our plight for recogni-
tion of this wrong has been ignored for the past 55 years, and more
35
recently is being denied by our own Government. Those of us who

were fortunate enough to survive are coming to the end of our lives
and we would like once and for all to see justice done on our behalf.
We cannot recapture our youth or our health. Frank here cannot
get his leg back. But we would like to recapture our honor and our
dignity that was taken away from us. The very least our country
should do is not stand in the way by compounding our servitude.
It is not money that motivates us; it is a need to remind the world
of the importance of basic human rights and dignity. A wrong is
a wrong, no matter how many people are doing it.
The Justice Department erroneously or negligently issued a for-
mal submission to the courts of our Nation, omitting the most cru-
cial issue of the San Francisco Peace Treaty, and, in effect, took
away our rights for recovery. Section 26, known as the most-fa-
vored-nation clause, states:
settlement with any state granting that state greater ad-
vantages than those provided by the present treaty, those
present treaty.
The records of our State Department show that at least six other
nations have been granted more favorable treaty terms than those
given to the United States. Article 26, when properly interpreted,
allows victims of forced or slave labor to seek recovery for the
wrongs perpetrated against former prisoners of war during World
War II. Yet, the Justice Department studiously ignored it in its
Statement of Interest and mentioned not one word of article 26,
even though it had been briefed on this issue. I urge you, Senators,
to use your position within our Government to correct this wrong
and have our Justice Department turn away from this misguided
action.
Mr. Chairman, Senators, this is not a tirade against Japan as a
nation. I have no animosity toward the Japanese people. However,
I and my colleagues who have served the United States and fought
in Bataan are entitled to compensation and an apology from the
Japanese companies that enslaved us. I heard the statement of Mr.
Ron Bettauer. The debt he is talking about can be paid by helping
us or getting out of our way.
Thank you, Senators, for listening to my story about honor, injus-
tice, and responsibility. We served our country with honor, we have
had our share of injustice, and now we seek responsibility from our
Government in allowing us to be heard in a court of justice.
Thank you.
The CHAIRMAN. Thank you, Dr. Tenney. I appreciate your great
testimony.
Mr. Jackfert.
STATEMENT OF EDWARD JACKFERT

Mr. JACKFERT. Mr. Chairman and members of the Senate Judici-
ary Committee, the American Defenders of Bataan and Corregidor,
Inc., deeply appreciates this opportunity to speak to your commit-
tee today.
36
My name is Edward Jackfert. I recently completed my second

term as National Commander of American Defenders of Bataan
and Corregidor, Inc. This gave me the opportunity to know most
of the members, the problems they encountered during the war in
prisoner of war camps, and subsequent mental and physical prob-
lems that emanated from their internment.
These heroic defenders of the Philippines, Guam, Wake Island,
the Dutch East Indies fought with what they had, and no army has
ever done so much with so little. Upon the surrender of the Phil-
ippines, many were subjected to a death march and horrible pris-
oner of war camp conditions. They were then squeezed into the
filthy allotted space in the bowels of the hell ships and transported
to Japan. Maybe there was still some physical strength left in them
to work for the Japanese industrialists, or perhaps they could serve
as barter should the Japanese militarists need them for such.
Devoid of any comforts, without food or water, and not even the
courtesy to mark the ship as carrying prisoners of war, they sailed
through the battle-infested waters toward Japan. They saw the
smack of a torpedo or a bomb as it hit their ship. They saw the
rushing waters that entered the hold and they felt panic that said
this is it. There was terror written in deep, gaunt lines on the
faces of the men, men that were to the breaking point both men-
tally and physically. Many died aboard the hell ships and were bur-
ied at sea. We have a record of 3,632 POWs dying on these hell
ships.
Those that arrived in Japan were assigned to quarters which
were unfit for human living. They were starved, beaten, and then
assigned to Japanese industrialists as slave labor to work in
plants, mines, shipyards, and factories. Many died of starvation
and severe mistreatment by the Japanese industrialists in Japan.
There were 27,465 Americans captured and interned by the Japa-
nese military during World War II. Of these, 11,107 died while
they were prisoners of war, and only 16,358 were returned to mili-
tary control of the U.S. Armed Forces.
Those who have survived the barbaric treatment in these pris-
oner of war camps suffer immensely today from the residual effects
of their prisoner of war life. It took our Government 36 years to
recognize by law certain disabilities resulting from the atrocious
treatment of prisoners of war by the Japanese military and indus-
trialists.
Those few who came home continually looked to their Govern-
ment to seek some redress from the Japanese industrialists who
used them as slave labor during World War II. As of this date, they
have found none. What they did receive was a peace treaty with
Japan that many claim denies them compensation for violation of
their human rights.
With the help of a few civic-minded attorneys and other individ-
uals in various parts of the United States, the prisoner of war com-
munity has initiated a drive for justice against those Japanese in-
dustrialists that used them as slave labor. A number of lawsuits
have been recently filed in the State of California on behalf of these
former prisoners of war. These complaints were filed against those
Japanese firms that benefited from their slave labor during World
37
War II. Hopes were high that perhaps justice might now prevail for
this group.
However, the prisoner of war community has been recently in-
formed that the U.S. Department of Justice has issued an opinion
that supports an incorrect interpretation of the Peace Treaty with
Japan dated September 8, 1951, which could foreclose the rights of
POWs under California law.
This action by the Justice Department is in direct contradiction
to a letter written by the Justice Department to Judge John W.
Bissell, Newark, NJ, that requested the Department to appear as
a friend of the court in two slave labor claims on behalf of persons
forced to work in German factories during World War II. The Civil
Division of the Department of Justice respectfully declined the re-
quest of Judge Bissell to become involved in this particular litiga-
tion.
It is very apparent that the Justice Department made a deter-
mined decision only 6 months ago not to interfere with claims
pending on behalf of Holocaust slave labor victims, whereas in our
slave labor cases they have taken a position which is detrimental
to such claims on behalf of slave labor victims of the Japanese in-
dustrialists.
These former prisoners of war are bewildered that the Justice
Department chose to take such a position which interferes with the
rights of private citizens to bring claims against private Japanese
companies. Is this what we fought for? Is this what some of our
comrades died for? Is this justice? Are they using a double stand-
ard in their decisions relative to Holocaust slave labor victims and
the slave labor performed by American prisoners of war?
We have many veterans in the audience here today, members of
the VFW, the American Legion, DAV, AMVETS, Military Order of
the Purple Heart Association, American Ex-POWs, Center for In-
ternee Rights, U.S.S. Houston Survivors, Jewish War Veterans,
Philippine Scouts, and a number of other veterans organizations.
Is this the freedom and justice that they fought for?
I was interned at Tokyo Area Prisoner of War Camp No. 2,
Kawasaki, Japan. Our camp was in the middle of a highly indus-
trial area centered on Tokyo Bay midway between Tokyo and Yoko-
hama. I was forced to work for Nippon Steel, Showa Denko, Mitsui
Co., and Kokosho. Beginning in January 1945, our area was sub-
jected to continual heavy bombing by B29s. On many occasions,
we had to perform slave labor while bombing raids were going on
around us, with planes flying right over our heads. We were not
permitted to construct air raid shelters until June 1945.
On July 25, 1945, our area was subjected to a heavy demolition
bombing which destroyed our camp and killed 22 of our fellow pris-
oners of war. The next day, we had the task of picking up the
pieces of flesh of our dead comrades. The memory of this haunts
us to this day.
Since the end of World War II, neither the Japanese Government
nor those private industrial Japanese companies that enslaved our
soldiers have ever offered to make restitution for the abuses and
injuries we suffered, much less to offer an apology. It is time for
the U.S. Government to act honorably and quickly to close this
38
dark chapter and afford these former prisoners of war the dignity
that was taken away from them many years ago.
Once again, I thank you for being able to appear before you
today.
The CHAIRMAN. Well, thank you, Commander. We are happy to
have you here.
Professor Maier, we will take your testimony at this time.
STATEMENT OF HAROLD G. MAIER

Mr. MAIER. Thank you. I have a note from Mr. OBrien indicating
that you are running short of time, and I am aware of that.
The CHAIRMAN. Well, if you could summarize, it would be great.
Mr. MAIER. That is exactly what I wanted to do. You have a writ-
ten statement from me, which is much longer than I was going to
deliver anyway and deals with the same issues.
The CHAIRMAN. We will put your complete statement in the
record and anything else you care to provide us.
Mr. MAIER. I do have a few comments I would like to make on
some of the other testimony today. I thought I would just say one
thing about that which will take about 1 minute.
The CHAIRMAN. Sure.
Mr. MAIER. I was somewhat surprised at Mr. Bettauers testi-
mony from the State Department, although I fully understand the
problems of international diplomacy and how they sometimes tend
to run counter to the legal issues with which we have to deal. But
my concern with it was two-foldperhaps just one.
I think it is a very dangerous precedent for the Department of
State to take the position that the plain language of a treatyand
I am referring now to the most-favored-nation clausecan be inter-
preted somehow in the light of a single, nonstated objective with
which that claim was put into the treaty. I know of no public posi-
tion taken like that, and I know of no legal support for it.
When you write it down and you negotiate it, it is just like a
piece of law, and that is what the Constitution of the United States
says. The treaty is the supreme law of the land and I think we
have to interpret it in the way in which we normally interpret the
supreme law of the land when that is written by the Congress and
signed by the President. So I was concerned about that, and I dont
think that that is the way in which one interprets this treaty in
any event, and I have addressed that in the paper.
I do want to say one other thing. We have also two papers, one
by Prof. John Rogers of the University of Kentucky, and the other
by Prof. Michael Ramsey, who is a professor of law at the Univer-
sity of San Diego Law School. I have read both of these papers and
if you do not have them, I would very much like to ask that you
put those into the record as well.
The CHAIRMAN. Without objection, we will do that.
Mr. MAIER. I have read both of them, and I havent consulted
with either of them, but on the basis of my experience as a teacher
and a scholar I believe that both papers are excellent analyses and
support conclusions I would strongly recommend to this committee.
[The prepared statements of Prof. Michael D. Ramsey and Prof.
John M. Rogers appear in the Appendix.]
39
Mr. MAIER. I guess I ought to say who I am. I am a professor

of law at Vanderbilt. I hold the David Daniels Allen Distinguished
Chair there, and I specialize in international legal studies, public
international law. Constitutional Law of the United States and
Foreign Relations are the two courses I teach that are related to
this.
I was counsel on international law in the Legal Advisers Office
at the Department of State in 198384, and I continue to serve as
a consultant on international legal issues for them. I am an elected
member of the American Law Institute. I do that only so that the
record will show that I have some expertise in the field with which
we are dealing.
If I may say one more thing, my profession gives me always the
great pleasure to associate with some very distinguished people
Members of the Senate, Members of Congress, Members of the ex-
ecutive branch, and others in the U.S. Government and outside it.
But I have never been in the presence of such distinguished men
as those who are at this table with me today.
That is all.
[The prepared statement of Prof. Harold G. Maier follows:]
PREPARED STATEMENT OF PROFESSOR HAROLD G. MAIER
I. PROFESSIONAL BIOGRAPHY AND QUALIFICATIONS
I am Harold G. Maier, Professor of Law at Vanderbilt University, Nashville, Ten-

nessee, where I have been a member of the Law School faculty since 1965. I re-
ceived my BA degree in English literature at the University of Cincinnati in 1959
and my JD degree in 1963 at the UC College of Law. I earned my LLM degree at
the University of Michigan in 1964 with a concentration in international legal stud-
ies.
In 195960, I studied German language and history as a Luftbrucke
Dankstipendiat at the Free University of Berlin, Federal Republic of Germany
(FRG), and pursued advanced studies concerning the international licensing of in-
dustrial property rights at the Max Planck Institute for Patent, Trademark and
Competition Law at the University of Munich (FRG) in 196465.
At Vanderbilt, I currently teach courses in International Civil Litigation, Constitu-
tional Law of United States Foreign Relations, and Conflict of Laws and have also
taught Public International Law, Comparative Law, Civil Procedure, U.S. Constitu-
tional Law, Patents, Trademarks and Unfair Competition and Immigration Law, as
well as seminars on various related subjects.
In 198384, I served as Counselor on International Law to the Legal Adviser of
the United States Department of State and am presently a member of the State De-
partments Advisory Committee on Private International Law. I was special liaison
between the Office of the Legal Adviser and the committee of Reporters for the
ALIs Restatement (Third) of Foreign Relations Law of the United States, 198488,
and was consultant to the Office of the Assistant Secretary of the Army for the Pan-
ama Canal Treaty Negotiations, 197677.
I served as an expert witness for the United States government in the Cuban
Mariel Boat Lift cases (see, e.g., Fernandez-Roque v. Smith, 622 F. Supp. 887
(N.D.Ga., 1985) and was a member of American Branch of the International Law
Associations ad hoc Committee on International Law in Municipal Courts, report
published November 16, 1993.
I have been a visiting professor at law schools at the Universities of Pennsylvania,
George Washington, North Carolina and Georgia and in summer law programs in
Aix-en-Provence, France, and London, England. For the academic year 20002001,
I have been appointed Straus Visiting Distinguished Professor of Law at Pepperdine
University Law School in Malibu, California.
I am a member of the American Society of International Law and of the American
Society of Comparative Law. I served on the board of editors of the American Jour-
nal of International Law in 198488, and have been a member of the editorial board
of the American Journal of Comparative Law since 1997.
40
I was elected to membership in the American Law Institute (ALI) in 1984 and
served on the Committee of Consultants for the ALIs Complex Litigation Project,
19881993. In 19751976, I was a Guest Scholar at the Brookings Institution,
Washington, D.C., studying the role of the separation of powers principle in the con-
duct of United States foreign policy.
II. CONTEXT OF THIS TESTIMONY
I have been requested by United States nationals who were held as prisoners of
war by the Government of Japan during the Second World War to consider the ap-
plication of international and constitutional legal principles in United States courts
in the context of claims filed by those nationals against certain Japanese corpora-
tions and their United States subsidiaries. I have been asked to assume that the
Japanese corporate defendants used these American war prisoners as slave or forced
laborers without pay, tortured them and committed other acts of gross inhumanity
against them, all in violation of international and Japanese legal standards for
treatment of prisoners of war.
III. COMMENTARY ON THE LEGAL SUBSTANCE OF THESE CLAIMS
I have been advised that both the Japanese parent juridical entities and their
United States subsidiaries have invoked the 1951 San Francisco Peace Treaty be-
tween the United States and Japan 1 (and particularly Article 14(b) of that treaty)
as a defense to these actions by American citizens who were Japanese Prisoners of
War held in Japan during World War II. It is my opinion that none of the terms
of that Treaty precludes these legal actions by American citizens who were former
prisoners of war.
There are several reasons why the 1951 Peace Treaty does not preclude these
claims. First, the language of Article 14 and the publicly articulated purposes of the
Treaty indicate only that it intended to do more than address the limited questions
of what should be done with Japanese-owned assets which in 1951 were under the
control of the United States and the other Allied Powers. In this respect, the 1951
Treaty does not include terms of exclusivity of remedy with respect to all Japanese
violations of individual rights of American citizens that occurred during world War
II. Article 14(a)(2) of the Treaty gave the United States and it Allies only the right
to seize and dispose of Japanese assets within their control. Section 14(a)(2) makes
no comprehensive reference to any limitations on future remedial measures on be-
half of United States nationals (for example, nothing in the Treaty addresses or pur-
ports to precludes U.S. nationals from seeking future remedies against assets or
property of private Japanese nationals located in Japan).
Moreover, the mechanism selected for paying compensation (e.g., the confiscation
of Japanese-owned assets then under the control of the United States for conversion
into assets suitable for paying compensation claims to persons illegally injured by
the Japanese Government) was agreed to by the Allied Powers in explicit recogni-
tion that, at that point in time, Japan could not develop a viable postwar economy
if it were required to pay immediately all valid claims. This policy basis for Article
14(a)(2) excludes any reference, pro or con, to future claims filed by individuals to
recover for injuries at the hands of the Government of Japan or Japanese nationals
when the Japanese economy no longer needed protection from the necessary results
of its inhumane wartime policies. As such, there is no evidence in the Treatys lan-
guage or purpose that the Allied Powers agreed to excuse the Government of Japan
or Japanese nationals from future private claims to recover for these injuries.
Lacking the evidence of any clear intention to nullify the future rights of these
former prisoners now seeking compensation, the public statements of the United
States negotiators at most suggest the Peace Treaty was specifically intended to ad-
dress only the use of Japanese assets then located within the United States. Thus,
for example, I would direct the attention of the Committee to Secretary of State Dul-
les explanation of the Treatys terms and intent before the Senate Foreign Relations
Committee, in which he stated,
The United States gets, under this treaty, the right to use Japanese assets
in this country to satisfy whatever claims Congress feels should be satisfied.
We have taken under that provision approximately $90 million of Japanese
assets in this country. Approximately $20 million have been used to take
care of claims which have been approved by the Congress on behalf of in-
ternees, civilians and prisoners of war, and it remains for Congress to de-
cide what it wants to do with the balance.2
1 Treaty of Peace with Japan of September 8, 1951, 3 U.S.T. 3169 (hereinafter Peace Treaty).
2 Emphasis added.
41
Nothing in this statement suggests that future claims of United States nationals
were intended to be nullified by operation of the Peace Treaty, or that the United
States had precluded any U.S. nationals from pursuing future claims. Secretary
Dulles comments refer only to claims to be satisfied out of Japanese assets then
located within the United States and to the role of Congress in distributing the bal-
ance of these particular assets. This interpretation makes especially good sense in
the light of the stated purpose of the United States to prevent the economic collapse
of post-war Japan by restricting recovery to those assets then under United States
control. It has no bearing on the continued existence of claims if and when Japans,
economy might recover or if Japan demonstrated its ability to provide further com-
pensation.
Second, the structure of the text of the Peace Treaty provided many provisions
in which the United States could declare explicitly that the remedies referred to in
the Treaty were exclusive (or preclusive) with respect to all claims brought by pri-
vate U.S. citizens. As even the most cursory examination of the text of the Treaty
would disclose, no such explicit limitation is contained in the Treaty. Despite this,
I am advised that an assertion to the contrary has been made by the Defendant cor-
porations (and presumably by the Government of Japan) based on Article 14(b)
which, by its terms, waives:
* * * all reparations claims of the Allied Powers, [and] other claims of the
Allied Powers and their nationals, arising out of any actions taken by
Japan and its nationals in the course of the prosecution of the war. * * * 3
Under international law and practice, this provision does not operate in the man-
ner asserted by these Defendants. To the contrary, the most reasonable interpreta-
tion of the wording used in this provision is that the Allied Powers (including the
United States) waived their respective rights to espouse in the future the claims of
their respective nationals arising out of the prosecution of the war. Without such
espousal, no claims based on private injuries and arising under international law
exist for the Allied Powers to pursue against the Government of Japan. If this were
not the intent of the waiver, the Allied Powersincluding the United Stateswould
have put themselves in the position of waiving unespoused claims in which they had
no valid, legally recognized interest. Under international law, an injured nationals
government has no recognized legally enforceable interest, and, therefore, no inter-
est to waive, until the government espouses the injured individuals claim.
This rule has particular significance for the United States. Under domestic law,
the United States government cannot waive a claim that it does not own,that
it has not espousedwithout the consent of the owner of the claim. I am not aware
of any indication that the former U.S. prisoners of war waived their claims, nor any
evidence that the United States ever proposed espousal of these claims or formally
espoused these claims. The fact that the former POWs have filed this law suit sug-
gests precisely the opposite conclusion.
Third, even if the Treaty could be construed to preclude private claims by United
States nationals against Japanese nationals, this preclusive effect would have been
overtaken by operation of the Most Favored Nation provision embodied in Article
26. Under that Article, Japan has extended unconditionally to every Allied Power
(including the United States) the right to claim the same treatment from the Japa-
nese government that Japan gives other nations with respect to war claims, regard-
less of any limitation that might be read into the original terms of the 1951 Treaty.
This most-favored-nation clause, which is commonplace in treaties, is unconditional
and unqualified. It operates automatically to give the United States and any other
Allied Powers rights of any other nation to which the Japanese government might
give more favorable treatment with respect to war claims than it gave to the parties
to the Peace Treaty. Under standard practice in international law, the United States
need take no formal action to avail itself of such more favorable terms. Further-
more, the time at which such more favorable terms might be granted to another na-
tion is irrelevant to the rights of the United States to claim the benefit of those
terms. The United States need not enter into additional negotiations with Japan in
order to claim its most-favored-nation rights. The failure of the United States or any
other Treaty party to take any formal or official steps to invoke its rights under the
most-favored-nation clause does not, of itself, constitute a waiver of those rights, nor
does such failure create an estoppel against the assertion of such rights.
3 Art. 14(b), Peace Treaty differs from that in which the United States government has es-
poused a claim and then decides to settle that claim without the consent of the claims original
private owner. In those circumstances, once the United States government has espoused the
claim, it has put the claim settlement process into the diplomatic realm. Private rights cannot
limit the ability of the United States government to carry on effective diplomacy by agreeing
with another government to compromise a claim once that claim has been espoused.
42
While I have not reviewed the totality of all treaties into which Japan has entered
since World War II, I have reviewed at least eight in which the Japanese govern-
ment has extended more favorable treatment to other nations than it did to the
United States with respect to United States claims on behalf of its injured nationals.
For example, Japan agreed in its peace treaty with Denmark to make payment for
claims for injury to Danish nationals, without requiring release of claims against
Japanese nationals as Japan required in the Peace Treaty with the United States.
Similarly, Japan has paid claims of foreign nationals without requiring the release
of claims against Japanese nationals, the quid pro quo that its nationals now seek
to invoke through the strained interpretation of the 1951 treaty with the United
States, discussed above. (See Japanese Treaties with Sweden, Switzerland, Spain,
and The Netherlands.) Further, in their war claims settlement agreement, Japan
agreed with Burma to reopen both the scope of waiver and the amount of payment
that Japan was to make to settle claims against Japan by Burma. Japan has made
no such offer to the United States. And, in its settlement with the Soviet Union,
Japan agreed to limit the scope of its release of claims to those that arose after Au-
gust 9, 1945. I am advised that the claims at issue in the suits brought by U.S. na-
tionals against Japan arose before that date.
In the light of these subsequent war claims agreements on terms more favorable
to foreign nationals than those extended to nationals of the United States in the
Peace Treaty, Japan must now be treated as having extended that same favorable
treatment to claims by United States nationals. Those terms do not include any
basis to assert that claims by United States nationals against Japanese nationals
have been waived in any respect. Thus, I reiterate that, even if the Treaty could
be construed to preclude private claims by United States nationals against Japanese
nationals, this preclusive effect would have been overtaken by operation of the Most
Favored Nation provision embodied in Article 26.
IV. CONCLUSION
For all these reasons, I conclude that, in accordance with international law and
practice, the 1951 Treaty should not, and cannot, be interpreted to preclude private
actions by U.S. nationals against private Japanese nationals, and that Article 14(b)
of that Treaty does not operate to effect any contrary rule.
The CHAIRMAN. Well, thank you, professor. I think that is a nice
way of summing up. I feel very honored to be with you gentlemen
and your friends in the audience here today myself.
I am way over time, but let me just have each of you answer
these three questions. Tell us what it meant to you to serve your
country, and I think most of you have already indicated that, but
if you would care to make any additional comments, and how has
your Governments response to your cases affected you. Some may
say that this litigation is all about money. Please tell us what as-
serting these claims means to you and what really do you want
from these companies that had you work in slave labor.
You dont have to answer all four of them, but why dont we start
with you, Mr. Poole, and then go right across the table.
Mr. POOLE. Thank you, Senator. I would like to respond to the
question about why and what it is we are looking for out of this
case. For myself, justice is at the top of the list, and also I would
like the information and the account of this to be incorporated in
our history books so that my great-grandkids and those that follow
will be able to read and know what really happened to us there.
And also it might be a deterrent for any of this happening again
in the event that the situation arises with different nations. It
might help out and give them a little more of a guideline to follow
rather than what happened to us.
Mr. Bigelow.
Mr. BIGELOW. The primary thing I am looking for, sir, is justice,
but I would like to say that the thing I think should happen in this
43
country more than anything else is that our children and our young
people should be taught what happened and why it happened, and
maybe the future leaders of our country wont make this same mis-
take. That is all.
Mr. Tenney.
Mr. TENNEY. What I would like is that I want not only the jus-
tice that we are talking about, but by getting this justice I think
we will also have an opportunity to let the citizens of Japan know
once and for all what really happened. They are ignorant of what
has happened because the Japanese Government refuses to tell
them, the Japanese Government refuses to put it in their text-
books, and the people there do not know what happened.
And so by seeking justice, by getting this apology that can be a
national issueremember that in 55 years they have done nothing,
no apology, and the Japanese companies have done absolutely
nothing. But by issuing a formal apology, I think that will not only
help our own country, but will educate the Japanese people to what
really happened. And it is through education that we can stop this
from ever happening again.
It is not a case of money. It is a case of what is right, it is a case
of having what is right given to us. And if that means an apology,
that is fine. If it means money, then let the courts decide on that.
But I dont want that. I want the apology and I want the Japanese
people to all know what happened.
The CHAIRMAN. Thank you, Mr. Tenney.
Mr. Mazer.
Mr. MAZER. The only thing I want out of this is justice. We are
having our laws in the United States, and we who fought and came
back sick, and some are still sick, we want someone to tell us why
it happened, why we didnt get the help that we should have had.
But I have nothing against the Japanese people. This is Mitsubishi.
They took me and they harmed me, and I would like to see that
they pay for that.
The CHAIRMAN. Well, thank you, Mr. Mazer.
Mr. Jackfert.
Mr. JACKFERT. Senator, we all know that we live in the greatest
country in the world. There is no doubt about that, but we were
all professional soldiers. We willingly would have died for our coun-
try and freedom. Freedom is what it is all about. That is why we
are here.
And as far as justice goes, I think that perhaps in our country
we have the greatest jury system in the world. Let a jury decide
what justice is for us. It is not money; it is what we went through.
Hopefully, perhaps someday the people of the United States will re-
alizeour story has never really been told. You have heard these
veterans here tell you about what they went through, but they can-
not tell you what they went through. You had to be there; you had
to feel the cold, the bugs, all this. This is a part of what we went
through. It is impossible.
So it is not money, it is justice, and that is all we seek. We want
these companies that are responsible for making us slave laborers
responsible for what we went through.
The CHAIRMAN. Thank you, Mr. Jackfert.
44
Professor Maier, we do have a number of legal questions we

would like to ask, but in the interests of time I think it is best to
submit those to you in writing and make your responses part of the
formal record here.
Mr. MAIER. Thank you very much, Senator.
The CHAIRMAN. Your responses will be very important to us, so
we would like those back as soon as you can, but we would like
them to be as fully stated as possible.
Mr. MAIER. I will be glad to do that.
The CHAIRMAN. I would like to thank all of the witnesses who
have appeared today and all of the organizations and individuals
who have submitted statements or materials to be included in the
record. Your input has been very valuable; in fact, let me say it has
been invaluable.
I want to express my special thanks to the many former POWs
and their family members who are here today. Your personal sto-
ries and experiences are powerful reminders that freedom is not
free. You have paid a heavy price for the liberty that all of us enjoy
and take for granted. We are forever in your debt.
I am also pleased that the Judiciary Committee has been able to
provide a forum for these important issues to be raised and dis-
cussed. Obviously, there are some difficult legal issues to be raised
that have been raised. There are difficult legal and diplomatic
questions that must be answered and addressed.
We are going to continue to help ensure that your stories are told
and that the public becomes educated about this part of history.
We will continue to push for the disclosure of records and the infor-
mation that should rightfully be in the public domain. We also will
fight for passage of compensation for you from our Government.
Finally, regardless of how the technical legal issues of the treaty
are resolved, which the courts are going to have to determine, we
will continue to explore how else this committee and others in Con-
gress might be appropriately helpful. I am open to ideas, and hope
that this hearing begins a dialog to discuss what can be done in
light of all the moral, legal, national security, and foreign policy in-
terests that are at play in this matter.
Now, to commemorate your appearances here today, I am going
to personally have flags flown over the Capitol and sent to your
homes, flags just like this one right here. We will send them to
your homes, and I would like you to please accept those as a token
of the Judiciary Committees gratitude for your service to our coun-
try.
In addition, some of you may have heard that I write music.
Well, we just finished our second patriotic CD and it is called Heal
Our Land. Mr. Bigelow, the first CD, which I am going to send
to you as well, because of your feelings for the flag, has the song
in it I Love Old Glory. And I presume all of you have similar feel-
ings.
But in this second patriotic CD, I wrote a song for my brother,
who was killed in the Second World War in the Plesty Oil Raid,
the one that knocked out Hitlers Vienna, Austria, oil fields. He
was missing in action for 2 years and then finally they found him
and brought him home, so we had to go through it all again.
45
I also have in there the song that we wrote for John McCains
friend who gathered little bits of cloth and made a flag that they
would salute and pledge allegiance to every night that kept them
sane. And when they found that he had this flag inside his shirt,
the Hanoi soldiers took him outside and beat him within an inch
of his life and threw him back in on this cement slab in the middle
of the compound all bloody and broken and beaten.
John said they cleaned him up as best they could, and he said
that they had four incandescent bulbs on all hours of the day and
night so there was always some light in the compound. So what
they did is they went to sleep, and for some reason John woke up
in the middle of the night and here was Mike Christian, this fellow
who had before used a bamboo needle to fashion little bits of cloth
into a flag, eyes all puffed up and bloodshot, broken and beaten
and bloody, sitting with a bamboo needle starting all over again to
make another U.S. flag. You folks understand that. You have been
through that. You have suffered for us. You have been willing to
give your lives, and to a large degree you have given a large part
of your lives for us.
I hope that the Justice Department and the State Department
will review this matter. I suggest to our friends in the Government
of Japan that they look at this matter carefully because there
needs to be some reparation here. I suggest to the people who run
these major corporations that are, I think, in every case very suc-
cessful that they realize they have some responsibilities here, too.
I am hopeful that this hearing will move us all down that road, in
those directions.
I want you to keep sending materials to us and help us to under-
stand. We will follow these matters with a great deal of interest,
and lets hope that much good will come from this hearing. I think
already much good has come just because of the testimony that you
gentlemen have given here today, because people all over this coun-
try are seeing this on CSPAN and will see it again on CSPAN,
and many of us who lived through those years will recollect what
you went through.
And for those who are younger who really dont have much of a
recollection at all of the sacrifices that were made so that they
could have freedom, this particular hearing, I think, will open their
minds and their hearts to realize that there are great human
beings who gave their lives for us. There are great human beings
who suffered for us, and you are among them and the leaders of
those great human beings.
So I am very grateful to have been able to sit through this hear-
ing today. I feel like this has been one of the great hearings that
we have had on Capitol Hill in recent years, and I just want to per-
sonally thank each and every one of you and all of those of you in
the audience for the sacrifices you have made for me, for my fam-
ily, for our friends, for our neighbors, for our fellow citizens, and
really for the whole world, because without you this world would
be a very, very different place than it is today. So God bless each
and every one of you.
With that, we will recess until further notice.
[Whereupon, at 1:01 p.m., the committee was adjourned.]
APPENDIX
QUESTIONS AND ANSWERS
RESPONSES OF THE DEPARTMENT OF JUSTICE TO QUESTIONS FROM SENATOR HATCH

Question 1. In connection with the Holocaust Cases, the Department was re-
quested by the court to submit a statement of interest as to whether the private
lawsuits were precluded under international law or constitutional principles, but de-
clined, having concluded that these actions were not barred from proceeding. In
other words, where its views were consistent with the position of U.S. nationals and
contrary to the views of foreign interests, the Department withheld submission of
its views. Now, having concluded that its views are contrary to the views of U.S.
nationals and consistent with the views of a foreign interests, the Department has
submitted its views. Please explain the policy considerations that went into the deci-
sion not to submit a statement of interest in the Holocaust Cases while submitting
views in these cases.
Answer 1. The premise of this question is incorrect. It is true that the Department
of Justice was invited by District Judge John W. Bissell to state the views of the
United States concerning the impact of various post-war treaties with Germany on
the cases pending before him brought by World War II era slave and forced laborers
against German companies. The United States did not, however, as the question
posits, decline the courts invitation on the basis of a conclusion that these actions
were not barred from proceeding. The United States has taken no position on the
interpretation of the treaties. As we advised Judge Bissell, the negotiations over cre-
ation of a German foundation to compensate victims were then at a very delicate
stage, and the United States negotiators were hopeful that the talks could reach fru-
ition shortly. If successful, of course, a settlement would render resolution of the
legal issues unnecessary. The Departments letter (copy attached) went on to say
that, as a result, we are reluctant to take action now that might interfere with
achieving that objective, an achievement we believe the court would welcome. (Tab
1). The Department also agreed to update the court on the progress of the talks and
perhaps suggest a further schedule for providing the United States views. These
positions were taken at the request of the Department of State, who had the lead
in conducting the negotiations in question, and the policy lead for the United States
on these issues. Thus, the State Departments judgment that the United States
should not submit its views to Judge Bissell was based on a judgment that filing
could interfere with negotiations that hold out the hope of payments to slave and
forced labor survivors, including perhaps 100,000 or more American citizens. If the
final settlement is reached, as the State Department anticipates, these cases will
be dismissed voluntarily, obviating the need to resolve the legal issues or for the
United States to opine on them.
In contrast, the foreign policy agencies of the United States are not involved in
any negotiations concerning the claims of American prisoners of war in Japan, and
the decision to file in the Heimbuch case, at the request of and in close consultation
with the State Department, stemmed from the United States obligation to carry out
what it believes are clear treaty commitments. Having waived World War II claims
of U.S. nationals against Japanese nationals, in a treaty made by the President with
the advice and consent of the Senate almost fifty years ago, the State Department
concluded that United States had an obligation to its treaty partner to see that the
provisions of that agreement are faithfully executed, and that this required the fil-
ing of the Statement of Interest. After careful analysis of the law and posture of
the case, the Department of Justice deferred to that judgment.
(47)
48
Question 2. The Statement of Interest asserts, without any analysis or citation of
authority, that the United States created an exclusive remedy for claims by its na-
tionals against Japan and its nationals arising out of WW II through the Treaty of
Peace with Japan and the War Claims Act. Please cite any provision of the War
Claims Act that precludes causes of action by U.S. nationals against Japanese na-
tionals, or provides that the War Claims Act is an exclusive remedy for any claims
by U.S. nationals against Japanese nationals. In addition, please cite and provide
any document (including but not limited to negotiating history) or citation to any
other contemporaneous authority or precedent that the Treaty clearly, intentionally,
and unmistakably excluded or precluded lawsuits by U.S. nationals against Japa-
nese nationals?
Answer 2. There is significant public record material concerning the negotiating
and drafting history and Senate ratification of the Treaty of Peace. We discuss this
history below and have provided copies of pertinent materials as attachments to
these answers.
Article 14(b) of the 1951 Peace Treaty states that, [e]xcept as otherwise provided
in the present Treaty, the Allied Powers waive all reparations claims of the Allied
Powers, other claims of the Allied Powers and their nationals arising out of any ac-
tions taken by Japan and its nationals in the course of the prosecution of the war.
33 U.S.T. 3169 (Tab 2). On its face, Article 14(b) waives not only claims against the
Government of Japan, but all claims arising out of the prosecution of the war,
whether such claims are based on actions of the Government of Japan or actions
of Japanese private nationals. The Peace Treaty defines nationals to include ju-
ridical persons, and juridical persons includes business corporations. Article 4(a).
Nor, by its terms, is the waiver limited to claims that would fall within a strict defi-
nition of reparations. Article 14(b) specifically waives reparations claims of the Al-
lied Powers, and all other war-related claims of the Allied Powers and their nation-
als.
We think it clear that the treaty means what it says. The contemporaneous docu-
mentary record further demonstrates that both the Executive and Legislative
Branches understood and intended that all claims, including national-to-national
claims, would be waived. As is reflected in the papers of the State Department and
the congressional record, both Branches were concerned that imposing heavy bur-
dens on the Japanese economy could result in a weak Japan and, as a result, an
expansion of Soviet influence. Thus, in furtherance of critical national security and
other interests, the United States and the other Allied Powers sought to achieve a
peace that would permit Japan to recover economically, and join Western nations.
Waiving reparations and other claims against the Government of Japan and Japa-
nese nationals was intended to advance this policy goal. In 1950, President Truman
appointed John Foster Dulles as a special Foreign Policy Adviser to the Secretary
of State, and assigned him the specific task of negotiating a multilateral peace trea-
ty with Japan. Dulles fully recognized the possibility that Japan someday would be
in a better economic position, and then might be able to afford to pay the legal
claims of its countless victims. Nonetheless, in a draft statement he wrote for Sec-
retary of State Acheson to deliver to the President of the Philippines in August
1951, Dulles noted that only vigorous effort and industry by the Japanese will en-
able them to earn enough foreign exchange to import what they need to live in de-
cency. Memorandum by the Secretary of State (Acheson) to the President, Washing-
ton, August 7, 1951, reprinted in Foreign Relations of the United States 1951, Vol.
VI, Asia and the Pacific, at 1245 (1977) (enclosing Draft Proposed Statement to the
Philippine Government drafted by Dulles) (Tab 3). Dulles further observed:
This would be impossible if the Treaty kept alive the right of the Allies
to demand monetary reparation payments. That would so impair public and
private credit as to make essential capital developments impossible and so
contract Japanese ability to finance exports and imports as to endanger Ja-
pans survival as a member of the free world. It would destroy Japanese
initiative because the Japanese would know that the greater was their ex-
ertion the more would be taken from them.
It may be argued that no one can predict the future with certainty, and
that events not now foreseen might give Japan a future ability to pay mon-
etary reparation. That is true. But it is also true that if an economy is set
up so that it must bear all unfavorable developments while deprived of the
benefit of all favorable developments, there is lacking the balance needed
to produce endeavor and to sustain credit, and disaster occurs which is not
limited to the area dealt with.
All of these lessons were taught by the Treaty of Versailles. Under it rep-
arations claims destroyed German credit and will to work. The claims were
49
sought to be enforced by the most determined effort that history records.
Certain Allied armies occupied the industrial heart of Germany, they ar-
rested the German industrialists for allegedly sabotaging reparations, and
they operated mines and factories for reparation account. But the Treaty
and all the efforts to enforce it produced no appreciable reparations, but did
create grave divisions as between the principal allies and set in motion in-
flationary forces, first in Germany, and then on a world-wide scale which
many observers believe were largely responsible for the tragic economic col-
lapse which began in 1929 and lasted until World War II.
Id.
To ensure that all war claims, brought either by individuals or by governments,
would be settled by the Peace Treaty, the United States suggested the addition of
the waiver provision that eventually became Article 14(b) of the Peace Treaty. Japa-
nese Peace Treaty: Working Draft and Commentary Prepared in the Department of
State, Washington, June 1, 1951, reprinted in Foreign Relations of the United
States 1951, Vol. IV, Asia and the Pacific, at 1084 (1977) (Tab 4). The United States
justified this suggested addition with the following comment:
The insertion * * * is proposed for the reason that the treaty should set-
tle and dispose of all claims of the Allied Powers and their nationals arising
out of the war. If no waiver were provided, some Allied governments or Al-
lied nationals might continue to press such claims against Japan after the
coming into force of the treaty. Settlement of claims in the treaty assures
that no Allied government or Allied national receives preferential treat-
ment. The language of the waiver follows closely the language of Article 19
in which Japan waives claims against the Allied Powers.
Id.1
The Senate Committee on Foreign Relations (Committee) unanimously rec-
ommended that the Senate give its advice and consent to ratification of the 1951
Treaty of Peace with Japan. See S. Exec. Rep. No. 822, at 4 (1952) (Tab 5). The
Senate specifically focused on the wisdom of waiving legal claims. In its rec-
ommendation, the Committee warned that requiring payment of reparations and
other war-related claims in any proportion commensurate with the claims of the
injured countries and their nationals would be contrary to the basic purposes and
policy of the free nations, the Allied Powers, and the United States in particular
in the Far East. Id. at 12. The Committee described Article 14(a) as containing the
unequivocal provision that Japan should pay reparations to the Allied Powers for
the damage and suffering it caused during the War, but recognized that, [a]t the
same time, article 14(b) states that except as otherwise provided, the Allied Powers
waive all reparations and claims against Japan. Id. In recommending that the Sen-
ate give its advice and consent to ratification of the Treaty, including the waiver
provisions, the Committee emphasized Japans willingness otherwise to shoulder
reparations, and the unprecedented magnitude of reparations it had already paid.
Id. at 12, 14.
The Committee informed the Senate that the Treatys provisions do not give a
direct right of return to individual claimants except in the case of those having
property in Japan. S. Exec. Rep. No. 822, at 13; see also Japanese Peace Treaty
and Other Treaties Relating to Security in the Pacific: Hearings Before the Senate
Comm. on Foreign Relations, 82nd Cong. 14445 (1952) (Committee Hearings) (the
Treatys waiver provision closes and locks the gate on all avenues of recovery)
(Tab 6). In fact, the Committee held extensive public hearings in January 1952 on
the specific issue of war claims. The records of these hearings confirm that the Sen-
ate was aware that all individual claims were being waived by Article 14(b), and
that such claims would be dealt with exclusively through legislation. Committee
Hearings at 13345.
During the hearings, various objections and questions were raised concerning
compensation for individual claims and specific objections were made to the waiver
of these claims. See, e.g., id. One legislator even attempted to limit the effect of Arti-
1 Article 14(b) and Article 19(a) of the Treaty are not identical. Article 19 does not use the
term reparations at all, instead providing simply that Japan waives all claims of Japan and
its nationals arising out of the war. Article 14(b) waives all reparations claims of the Allied
Powers, but then goes on to say that all other claims of the Allied Powers and their nationals
against Japan and its nationals also are waived. Thus, to the extent that there is a legal distinc-
tion between reparations claims of the Allied nations against the defeated nation of Japan and
other sorts of claims that might arise out of the prosecution of the war, Article 14(b) explicitly
waives both.
50
cle 14(b) by proposing a reservation to the Treaty stating that nothing contained
in this Treaty shall be construed to abrogate the * * * just and proper claims of
private citizens of the United States. See 98 Cong. Rec. S2365, 256771 (1952) (Tab
7). In a memorandum, Adrian S. Fisher, the Legal Adviser for the U.S. Department
of State, informed Secretary of State Acheson that this proposed reservation was in
direct conflict with Article 14(b), and that, if this reservation were added to the
Treaty during the ratification process, a renegotiation of the Treaty Article would
unquestionably ensue. Memorandum to The Secretary from Mr. Fisher (the Legal
Adviser), dated March 19, 1952, at 4 (Tab 8).
In lieu of such a provision, the State Department recommended that Congress
adopt the War Claims Commissions suggestion that Congress amend the War
Claims Act of 1948 to provide for the receipt, adjudication and payment of claims
* * * resulting from mistreatment, personal injury, disability, or impairment of
health caused by the illegal actions of any enemy government during World War
II. Committee Hearings at 147. Congress eventually accepted this invitation, and
amended the War Claims Act to create[] a domestic mechanism for distributing
captured Japanese assets, which entitled members of the putative class to deten-
tion benefits for the period of imprisonment in Japan. Aldrich v. Mitsui & Co.
(USA), Case No. 87-912-Civ-J-12, slip op. at 3 (M.D. Fla. Jan. 20,1988) (citing 50
U.S.C. App. 2004 and 2005 (1994)) (Tab 9).
Consistent with this position, the Senate gave its advice and consent to the Treaty
on March 20, 1952, by a vote of 66 to 10, without adding a reservation pertaining
to war claims in its resolution of advice and consent. See 98 Cong. Rec. S2594 (1952)
(Tab 10). Advice and consent was considered and approved as part of a package with
three additional security treaties relating to the Pacific region, reflecting the United
States view of the Treaty as an integral part of its political and foreign relations
goals in that region. See, e.g., Cong. Rec. S2327, 2361, 2450, 2462 (1952) (Tab 11).
Article 14(b)s waiver provision did not, however, mean that victims who had
claims against the Japanese government and Japanese nationals would not be com-
pensated. A key feature of the Treaty was the system for the payment of war-relat-
ed claims it established to provide compensation for the damage and suffering in-
flicted by Japan and its nationals during the war. Treaty, Art. 14(a). Private Japa-
nese nationalsprimarily corporationswho had property or other assets located
outside Japan, paid a heavy price under the 1951 Peace Treaty to satisfy the re-
quirements of this system. The Government of Japan volunteered the use of those
assets to satisfy war claims.2 Pursuant to that Article and Article 16 of the Treaty,
assets located in Allied territory valued at approximately $4 billion were confiscated
by Allied governments, and their proceeds distributed to Allied nationals in accord-
ance with domestic legislation. See Comments on British Draft, Memorandum by
the Officer in Charge of Economic Affairs in the Office of Northeast Asian Affairs
(Hemmendinger) to the Deputy to the Consultant (Allison), April 24, 1951, reprinted
in Foreign Relations of the United States 1951, Vol. VI, Asia and the Pacific, at
1016 (1977) (Tab 12). The total value of Japanese-owned assets located in U.S. terri-
tory (including the Philippines) was estimated in 1952 to be worth more than $90
million. See Japanese Peace Treaty Negotiations, Feb. 5, 1952, reprinted in Execu-
tive Sessions of the Senate Foreign Relations Committee (Historical Series), Vol. IV,
82nd Cong., 2nd Session, 1952, at 12122 (1976) (Tab 13).
Following the war, these assets were seized by the Office of Alien Property (an
office within the U.S. Department of Justice), liquidated, and the proceeds placed
into a War Claims Fund, for ultimate distribution to POWs and other claimants.
As Ambassador Dulles explained:
The United States gets, under this treaty, the right to use Japanese as-
sets in this country to satisfy whatever claims Congress feels should be sat-
isfied. We have taken under that provision approximately $90 million of
Japanese assets in this country. Approximately $20 million have been used
to take care of claims which have been approved by the Congress on behalf
of internees, civilian and prisoners of war, and it remains for Congress to
decide what it wants to do with the balance.
2 [E]ach of the Allied Powers shall have the right to seize, retain, liquidate or otherwise dis-
pose of all property, rights and interests of
(a) Japan and Japanese Nationals,
(b) Persons acting for or on behalf of Japan or Japanese Nationals,
(c) Entities owned or controlled by Japan or Japanese nationals.
Treaty, Art. 14(a)(2).
51
Id. Funds to pay reparations mostly were provided from the confiscation of assets
of Japanese businesses, in accordance with United States and Allied policy.3
Using these confiscated funds, the Senate Committee on Foreign Relations recog-
nized that it is the duty and responsibility of each [Allied] government to provide
such compensation for persons under its protection as that government deems fair
and equitable, such compensation to be paid out of reparations that may be received
from Japan or from other sources. S. Exec. Rep. No. 822, at 1213. Following the
recommendation of the State Department, Congress amended the War Claims Act
of 1948, 50 U.S.C. App. 20012017 (1994), to afford additional compensation to
those taken prisoner of war by the Japanese. 50 U.S.C. App. 2005(d) (1994).
Originally enacted immediately after the war, the War Claims Act had estab-
lished a system of compensation for prisoners of war like Plaintiffs and certain other
victims of World War II. The Act established a War Claims Commission (now the
Foreign Claims Settlement Commission), which initially was authorized to adju-
dicate claims filed by any prisoner of war for compensation for specified violations
of the Geneva Convention of July 27, 1929, suffered while a prisoner of war, includ-
ing claims for violations relating to labor of prisoners of war. 50 U.S.C. App.
2005 (1994). These claims covered inadequate food, inhumane treatment, and cer-
tain types of forced labor. The Act was prompted by Congress desire to facilitate
the giving of immediate relief to those American citizens who were imprisoned by
the enemy during the war. S. Rep. No. 801742, at 7 (1948) (Tab 14).
At that time, however, Congress acknowledged that the question of war claims
* * * is too complex to be approached by the Congress on a piecemeal basis and
that the subject in its entirety must be studied thoroughly before any intelligent ac-
tion can be taken. H.R. Rep. No. 80976, at 4 (1947) (Tab 15). Therefore, Congress
charged the Commission with recommending types of claims to be accepted, adopt-
ing the procedures for considering claims, and establishing uniform standards for
handling such claims. See 50 U.S.C. App. 2007 (1994); 94 Cong. Rec. H56469
(1948) (Tab 16). Congress anticipated that the Commission would ensure the claims
[would] be handled in accordance with priorities, priorities to be established for, we
will say, the veterans of Bataan and others who have suffered similarly, as being
No. 1 for consideration. 94 Cong. Rec. H566 (1948).
Congress rejected a proposal that would have allowed federal courts to adjudicate
war compensation claims, because of the complexity of the issues and the need to
have the claims classified by experts who are qualified so to do in order to get
some rationality out of this situation [and] to determine the categories of claims that
should be allowed. 94 Cong. Rec. H564 (1948). It is clear that Congress did not
want claims within the Commissions jurisdiction to be adjudicated by the courts,
because it barred judicial review of the Commissions decisions by mandamus or
otherwise. 50 U.S.C. App. 2010 (1994).
Question 3. At no point in the Statement of Interest does the Department provide
any analysis of the language of Article 14(b) of the Treaty which limits the scope
of any waiver to actions taken by Japan and its nationals in the course of the pros-
ecution of the war. Please explain the meaning of this limitation, and identify and
provide all contemporaneous documents upon which the Department relies in that
interpretation. Please explain how the failure by private Japanese companies to pay
U.S. nationals for commercial labor at commercial-level wages is conduct arising in
the course of the prosecution of the war.
Answer 3. Everything known about the drafting of the phrase in the course of
the prosecution of the war indicates that it was intended to have a very broad
scope.4 The phrase first appeared in a proposed revision to Article 19(a) of the U.S.-
U.K. draft of the Treaty. Japanese Peace Treaty: Working Draft and Commentary
Prepared in the Department of State, Washington, June 1, 1951, reprinted in For-
eign Relations of the United States 1951, Vol. VI, Asia and the Pacific, at 1093
94 (1977) (Tab 4). Article 19(a) is a reciprocal provision to Article 14(b) that waives
all claims by Japan and its nationals against the U.S. and its nationals. The revi-
sion was proposed by the United Kingdom along with the alternative phrase or in
the exercise or purported exercise of belligerent rights. Id. The United States pre-
3 As an expression of its desire to indemnify those members of the armed forces of the Allied
Powers who suffered undue hardships while prisoners of war of Japan, Japan will transfer its
assets and those of its nationals * * * for the benefit of former prisoners and their families.
Treaty, Art. 16 (emphasis added).4
4 The phrase in the course of the prosecution of the war is not a specific term of art under
the laws of war. We have only found the phrase in one other international agreement, a 1972
agreement, Union of Soviet Socialist Republics Settlement of Lend Lease, Reciprocal Aid and
Claims, 23 U.S.T. 2910.
52
ferred the language in the course of the prosecution of the war because it was
more comprehensive. Id. The phrase was later inserted into Article 14(b).
In their complaint, Plaintiffs allege substantial and active participation by the
Japanese Government in subjecting American prisoners of war to forced labor.
Compl. 10, 12, 13, 43, 46 (Tab 17). According to the allegations in the complaint,
the conduct that forms the basis of Plaintiffs claims was the direct result of laws
and policies toward POWs adopted by the Government of Japan to aid its war effort.
Compl. 10, 12, 13, 41.5 Indeed, almost all of the allegations in the complaint deal
with the actions of Japan and its policies in prosecuting the war. The allegations
of actions taken by Japan and those taken by defendant companies are mingled, and
clearly were taken in the course of the prosecution of the war.
The war-time Japanese economy was an integral part of Japans mobilization for
total war. See John W. Dower, Embracing Defeat: Japan in the Wake of World War
II, 52930 (1999). The complexities of mobilizing an industrialized nation for total
war required them [the military] to take Japans other vested interests into partner-
ship. They enlisted the aid of the leaders of big business, whose expertise was cru-
cial in exploiting the resources of the Japanese Empire and in designing and build-
ing new weaponry. Meirion and Susie Harries, Sheathing the Sword: The Demili-
tarization of Japan, 4 (1987). By the late 1930s, industry, commerce and finance in
Japan were dominated by an interlocking series of monopolistic combines called
zaibatsu. Id. at 5. The zaibatsu rose to positions of prominence by collaborating
closely with the military. Dower, at 52930. The zaibatsu factories were called
upon to provide equipment, their shops to provide transport, their banks for finance,
and their overseas branches were useful bases for intelligence-gathering. Harries,
at 53. The military and zaibatsu cooperated to create an economy devoted to the
pursuit of the war, and it is clear from plaintiffs complaint that the very purpose
of pressing prisoners of war into forced labor was to shore up industrial support for
this total war effort.
Question 4. Has the Department attempted to determine whether Japan has en-
tered into any war claims settlement or other agreements through which, pursuant
to Article 26 of the Treaty, more advantageous terms must be extended to the
United States by Japan? Attached are copies of relevant portions of other treaties
entered into by Japan. Please explain why the United States should not now invoke
the equivalent rights extended to Burma by Japan, particularly in light of the deter-
mination of the United Kingdom that that Agreement triggered rights of the Allied
Powers under Article 26. Please explain why, in light of Japans War Claims Agree-
ment with the Soviet Union, the United States should not take the position that
Article 14(b) applies only to claims of U.S. nationals arising after August 8, 1945.
Please explain why the terms of Japans War Claims Settlements with other coun-
tries which do not require the waiver of claims by nationals or against Japanese
nationals should not be extended to the United States by operation of Article 26.
Please provide all analyses supporting these views and all documents on which they
rely.
Answer 4. Article 26 does not provide any rights to private litigants who may
claim that they should have the benefit of a treaty signed by other sovereign na-
tions. There is no private right to invoke Article 26 of the Treatyonly the United
States Government has rights under Article 26. International treaties are not pre-
sumed to create rights that are privately enforceable. Goldstar (Panama) S.A. v.
United States, 967 F.2d 965, 968 (4th Cir.), cert. denied, 506 U.S. 955 (1992); see
also United States v. Li, 206 F.3d 56, 670 (1st Cir. 2000) (en banc) (treaties do not
generally create rights that are privately enforceable in the federal courts); Tel-
Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C. Cir. 1984) (Bork, J., concur-
ring) (same), cert. denied, 470 U.S. 1003 (1985); Restatement 907 comment a
([international agreements, even those directly benefitting private persons, gen-
erally do not create private rights or provide for a private cause of action in domes-
tic courts * * *.). As the Supreme Court said well over 100 years ago in the Head
Money Cases: A treaty is primarily a compact between independent nations. It de-
pends for the enforcement of its provisions on the interest and the honor of the gov-
ernments which are parties to it. 112 U.S. 580, 598 (1884). To be sure, the pre-
sumption against a private right of action may be overcome where a treaty confers
rights on private parties, and the treaty partners intend that those rights be judi-
cially enforceable. See Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976). But
that is not the case here. See id.; cf. Li, 206 F.3d at 63 (noting State Department
5 Article 28 of the Geneva Convention of July 27, 1929, provides that [t]he detaining Power
shall assume entire responsibility for the maintenance, care, treatment and payment of wages
of prisoners of war working for the account of private persons. 6 U.S.T. 3316 (1929).
53
distinction between a treaty that creates state-to-state rights and one that creates
individual rights).
Only the United States may invoke Article 26 in appropriate circumstances.
Whether to invoke the rights embodied in Article 26 is a mixed question of law and
diplomatic policy entrusted in the first instance to the Department of State. Article
26 has been mentioned publicly by United States officials only once, to deter the
Japanese from granting sovereignty over the Kurile Islands to the Soviet Union. See
Secretary Dulles News Conference of August 28, 1956, Department of State Press
Release No. 450 (Tab 18). Absent invocation of Article 26, there is no current basis
for altering or construing the Treaty of Peace to conform to the terms of other na-
tions treaties with Japan.
Question 5. In determining the position that the 1951 Treaty necessarily and un-
mistakably waived the claims of private U.S. nationals against private Japanese na-
tionals, did the Department make any independent review of the negotiating his-
tory? Please explain how the position of the Department is consistent with the ex-
changes between Japan and the Netherlands, which are attached. Did the Depart-
ment consult with the Japanese Government regarding public reports (some quoting
the Japanese Prime Minister) that the official position of the Japanese Government
was that the 1951 Treaty did not waive national versus national claims?
Answer 5. The Department of Justice made an exhaustive review of the drafting
and negotiating history of the Treaty prior to submitting the Statement of Interest.
We also held appropriate consultations with the Japanese Government and are con-
fident that the official positions of the United States and Japanese Governments as
to whether these claims can be brought under the Treaty are consistent. Our answer
to question 2, above, reflects our review of the negotiating history.
The exchanges between the Governments of the Netherlands and Japan do not
alter the United States understanding of the treaty. The exchanges between the
Governments of the Netherlands and Japan make clear that, under the Treaty of
Peace, Dutch nationals would not be able to obtain satisfaction for their claims from
Japan or Japanese nationals. The claims of Dutch nationals, as with all other Allied
nationals, would continue to exist and could be satisfied through compensation by
their own government (similar to what the United States provided through the War
Claims Act) or through voluntary agreement by the Japanese government. See
Memorandum of Conversation, by the Deputy Director of the Office of British Com-
monwealth and Northern European Affairs (Satterthwaite), San Francisco, Septem-
ber 4, 1951, reprinted in Foreign Relations of the United States 1951, Vol. VI, Asia
and the Pacific, at 133233 (1977) (Tab 19).
Question 6. In preparing the Statement of Interest, did the Department (or the
State Department) consult with any scholars or experts on international law or trea-
ty interpretation? Did either Department discuss any of the above-mentioned issues
with any person involved in the negotiation or contemporaneous application of the
1951 Treaty? In the event of an affirmative answer to either question, please pro-
vide the name of such person and any document memorializing the substance of the
discussion or consultation.
Answer 6. In preparing the Statement of Interest, the Department of Justice con-
sulted with and relied on the legal and policy expertise of the Department of State.
It is the Department of State, not outside scholars and/or experts on international
law, that is responsible for the foreign policy of the United States, including the in-
terpretation of its treaties and obligations under international law.
RESPONSES OF RONALD J. BETTAUER TO QUESTIONS FROM SENATOR HATCH

Question 1. Has the Department of State met with Japanese companies to discuss
the lawsuits filed by the U.S. POWs?
Answer 1. No, the Department of State never met with the companies. Depart-
ment of State and Justice attorneys have, however, had telephone conversations
with some of the Japanese companies, legal representatives. After the U.S. Govern-
ment was invited by the District Court to file a Statement of Interest, legal rep-
resentatives of the companies sent most of their comments, inquiries and cor-
respondence to the Department of Justice.
Question 2. How often has the Department of State met with the plaintiffs (the
POWs) or their attorneys?
Answer 2. The Department of State has not met with the plaintiffs. The plaintiffs
themselves never initiated contact with the State Department, nor did their legal
representatives ever indicate to the Department that their clients wished to meet
with State Department officials. The State Department never initiated contact with
54
the plaintiffs, as it would have been unethical (under legal ethics rules) to contact
parties directly who are being represented by counsel. Department of State attor-
neys, however, had a number of telephone conversations with legal representatives
for the plaintiffs. These conversations were of a similar nature to the conversations
that government attorneys had with defendants attorneys.
Significantly, however, on February 15, 2000, representatives for the plaintiffs
metat their requestwith Deputy Secretary of the Treasury Stuart E. Eizenstat,
who was acting in his capacity as the Special Representative of the President and
the Secretary of State on Holocaust Issues. Also present at the meeting was a rep-
resentative from the State Departments East Asian and Pacific Affairs Bureau. At
this meeting, plaintiffs attorneys presented a list of legal points in support of their
presentation. Mr. Eizenstat committed to pass these points to Department of State
attorneys, and he promptly did so. These points were given serious attention by De-
partment of State and Justice attorneys in their internal deliberations.
After the U.S. Government announced its decision to file its Statement of Intent,
legal representatives for the plaintiffs sent most of their comments, inquiries and
correspondence to the Department of Justice.
55
ADDITIONAL SUBMISSIONS FOR THE RECORD
Berlin, Germany, June 26, 2000.
TEXT OF E-MAIL MESSAGE TO SENATOR HATCH FROM RABBI ABRAHAM COOPER OF

THE SIMON WIESENTHAL CENTER
The Simon Wiesenthal Center applauds the initiative of Senator Orrin Hatch to
convene hearings on the ex-POWs of the infamous Bataan Death March of World
War II this week under the jurisdiction of the U.S. Senate Judiciary Committee.
The great sacrifice, dignity and unselfish heroism of great Americans like Lester
Tenney deserve to be remembered by all Americans for all time. However, the full
scope of their suffering was never fully understood by the American people, nor fully
dealt with by our government. On the eve of Independence Day, July 4th, it is only
right therefore, that the Committee fully explore all of the historic issues surround-
ing the plight of these former POWs. While the Wiesenthal Center is not involved
in restitution issues, It is the position of our Center, that all documentation related
to the Pacific/Asia theater of World War II be made available by all relevant govern-
ments, led by Japan, The United States, China and Russia. Without full disclosure
of the past, there can be no just nor final closure for history, no full and meaningful
reconciliation for those who suffered. We look forward to reading the full text of
these important hearings and to learn of any further Congressional initiatives which
results from them.
With best personal regards to Chairman Hatch and the distinguished members
of the Judiciary Committee, Rabbi Abraham Cooper.
PREPARED STATEMENT OF BRUCE R. HARDER, DIRECTOR, NATIONAL SECURITY AND

FOREIGN AFFAIRS, VETERANS OF FOREIGN WARS OF THE UNITED STATES
MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE: The Veterans of Foreign Wars
of the United States is pleased to be able to make a written statement for the record
on behalf of those American veterans who were prisoners of war in the Pacific dur-
ing World War II.
This statement is the written testimony of the Veterans of Foreign Wars of the
United States. We understand that the purpose of todays hearing is to explore the
historical, legal, and practical issues surrounding the plight of the former POWs.
This written testimony presents the VFW leaderships views on this issue. We
want to make it clear that we strongly support the right of these veterans who are
former Prisoners of War (POWs) to receive fair and just compensation for the inju-
ries they suffered at the hands of their Japanese captors, and the slave labor they
were forced to perform by private Japanese Companies during World War II.
It is a well-documented fact that during World War II, thousands of Americans
were taken as POWs in the Pacific Theater and many were forced into slave labor.
According to our sources, over 33,000 U.S. military personnel were captured in the
Pacific Theater and interned by the Japanese. Of this total, over 12,500 of them
died in captivity. The percentage of those who died in captivity gives a good indica-
tion of the horrid conditions that existed in the POW camps administered by the
Japanese. These POWs suffered from a lack of adequate food, clothing, shelter, and
medical care, suffered interrogation and torture, endured unthinkable abuse and
brutality under the hands of their captors, and had their rights under the Geneva
Conventions routinely violated. In addition, many of these POWs were transported
to mainland Japan, and were required to work for private Japanese companies as
slave laborers under horrible conditions. Here as well they were subjected to severe
beatings and many different types of human rights abuses. When the war ended,
the survivors returned home, but have never received fair compensation for their
injuries and labor.
In fact, the only compensation most of these POWs received was standard Veter-
ans Administration/Affairs benefits including medical care, and one dollar from the
U.S. government for every day they spent in enforced labor while enslaved to pri-
vate Japanese companies. After the war, peace treaty considerations kept them from
legally pursuing larger reparations from the Japanese government or companies. On
the other hand, the Japanese companies who profited from the enslavement of these
American POWs have never compensated their American victims in any way nor
have they offered so much as an apology for the way our POWs were abused and
56
exploited. We think these former American POWs have a right to be adequately
compensated from the private Japanese companies for their suffering and sacrifice.
Recently, we received a letter from former POW, Robert M. Shrum who was held
as a POW by Japan for three and a half years during World War II. A life member
of the American Defenders of Bataan and Corregidor and the Veterans of Foreign
Wars of the United States and other veterans organizations, Mr. Shrum was cap-
tured in the Philippines in April 1942 following the fall of Bataan and Corregidor.
A survivor of the Bataan Death March, Mr. Shrum recently wrote a letter to Presi-
dent and in it he said:
After World War II ended in the Pacific, neither the Japanese govern-
ment or the private Japanese companies who worked us as slave laborers,
has ever offered to make restitution for the work, lack of food, abuse, un-
bearable living conditions, suffered injuries, tortured and killings; and have
not even offered an apology.
Most distressing to us, the U.S. government has continued to ignore us
during these same intervening years. Our government has never supported
us to have fair compensation and restitution paid to us who were brutally
enslaved and deprived of all human dignity. To me this is incomprehensible
especially as in recent years our government has awarded reparations to
Japanese American citizens who were interned in U.S. camps during World
War II, as well as diligently worked to resolve claims by victims of German
atrocities during the Holocaust. Both of these injustices deserve to be rem-
edied and finally achievedbut we former Pacific prisoners-of-war slave la-
borers continue to be ignored by the U.S. government and Japanese govern-
ment.
If the Japanese are willing apologize and pay restitution for crimes committed by
their own soldiers against the former comfort women of the Republic of Korea,
then why should they not do the same for American POWs who also ruthlessly
abused and enslaved during World War II. We believe that private Japanese compa-
nies have a similar obligation to provide just and equitable compensation to Amer-
ican former POWs.
On May 12, 2000, the Executive Director of the VFW Washington Office sent let-
ters to both Attorney General Janet Reno and Secretary of State Madeleine K.
Albright pointing out that our own government had turned its back on our former
POWs and did not pursue compensation from those companies for the injuries these
veterans sustained. In addition, his letters urging both Attorney General Reno and
Secretary Albright to stand up for these former prisoners of war whose claims are
not against our government or the government of Japan, but on the private compa-
nies that brutally enslaved them and profited form their labor. Unfortunately, to
date, our letters have gone unanswered.
Recently, we were distressed to learn that the United States Department of Jus-
tice publicly stated a position that is adverse to the efforts of the former POWs who
seek redress from private Japanese corporations. Frankly, we are outraged that the
Department of Justice has found it necessary to take such a position against our
own former POW veterans.
The VFW believes it is time that our government showed compassion for these
brave men and support their claims for just and equitable compensation. Our veter-
ans seek only fairness and equitable restitution for injuries suffered in defense of
our great country and all that it represents. Now is the time for the U.S. govern-
ment to act honorably to afford the former POWs the fairness and dignity they de-
serve.
Therefore, we urgently request that the Congress of the United States thoroughly
investigate this matter and intervene on behalf of our veterans to ensure that jus-
tice is done before it is too late.
Mr. Chairman and Members of the committee, thank you for this opportunity to
present the views of the Veterans of Foreign Wars of the United States on this
issue.
PREPARED STATEMENT OF LINDA G. HOLMES
AMERICANS IN CAPTIVITY: AN OVERVIEW OF THE PACIFIC WAR, 194145
Shimon Peres recently referred to Japans conquest of East and Southeast Asia
as The other Holocaust. When I asked him to clarify the context of his remark,
he wrote to me: What I mean is that although one can in no way compare the
atrocities perpetrated by the Nazis to any other atrocities, nevertheless the damage
57
caused by the Japanese attacks during the war was similar in character to that of
a holocaust. And indeed it was.
After feeling entitled to slaughter millions of Chinese and to subjugate the people
of Korea to a brutal occupation, Japans military forces began implementing their
primary goal of what its leaders termed The Greater East Asian Co-Prosperity
Sphere: to eliminate white people from Asia, forever. Between 1941 and 1945, its
occupying troops systematically worked to do just that. And they had standing or-
ders, issued in 1942, to kill all white people in custody if surrender were imminent.
Only the abrupt, atomic end of the Pacific War prevented this mass execution,
which would have annihilated nearly 300,000 white families and military prisoners
scattered in internment camps and company worksites all over occupied Asia and
the home islands of Japan.
Within weeks of the attack on Pearl Harbor, Japanese army and navy personnel
rounded up every white man, woman and child in Asia, including almost 14,000
Americans. A fewa very fewwere released, if they were lucky enough to be mar-
ried to an Asian or a national from an Axis country; or if they were one of the 3000
civilians exchanged for Japanese civilians living in the Americas. After three
months, when our government saw that the Japanese intended to keep nearly all
of our citizens incarcerated, we began rounding up Japanese living in the United
States, primarily those on the West Coast. The delayed timing of this relocation is
often overlooked; it followed weeks of frantic diplomacy. We had been Japans pro-
tector nation in three previous wars, including World War I; and Washington offi-
cialdom couldnt believe the government of Japan was not prepared to return the
favor. We had no idea how deep the resentment of white colonials was throughout
Asia; it had been building for a long time.
Before sundown on December 8, 1941, Japanese forces began taking American
military personnel prisoner in various outposts and embassies. By Christmas Eve,
nearly 1200 civilian construction workers on Wake Island found themselves pris-
oners of war, along with the Marine garrison there. And before six months had
passed, General Douglas MacArthurs entire Army of the Pacific had been either
killed or captured. By May 1942, over 25,000 Americans were prisoners of war; their
number would eventually swell to 36,000+. Nearly half died in captivity, as com-
pared to just 1.1 percent of military POW who perished in German military stalags,
or fixed POW camps. Over 3,600 Americans died at sea in unmarked merchant
ships transporting them to the Japanese home islands for use as slave laborers in
war production at factories, mines and shipyards. Nine out of 10 POW who died in
World War II perished in Japanese, not German custody.
All of our prisoners of war performed slave labor, under brutal conditions, for the
next three and a half years, even when they were so sick they could hardly stand.
Theirs was the longest captivity anywhere during World War II, and it was marked
by slow starvation, disease, medical experimentation at many POW camps, and the
deliberate withholding of medical supplies, relief packages, mail and even soap or
toilet paper.
Much has been made of the fact that the Japanese Diet [parliament] failed to rat-
ify the 1929 Geneva conventions relating to prisoners of war, which their delegate
had signed. But the Diet did ratify the conventions of the International Red Cross,
which were a part of that same 1929 gathering. So the fact that the Japanese re-
fused to distribute Red Cross packages which arrived weekly at company worksites
and POW camps throughout occupied territoryconstituted a separate category of
war crime. The Japanese government also declared all of its occupied territory a war
zone, and refused to let Swiss inspectors inspect POW camps and civilian internee
centers within the war zone. Japanese authorities refused to cooperate with the
International Committee of the Red Cross in supplying names of those held captive;
for most American families, a year or more went by with no confirmation of the sta-
tus of their sons, husbands, brothers. And our civilians in internment centers were
slowly being starved to death as well; visits from Red Cross or Swiss government
representatives were rare events; most internees or POW never saw a Red Cross
representative and can only remember one or two Red Cross boxes being given out
during nearly four years of captivity. Perhaps the most egregious interference with
relief was the withholding by the Japanese government of 98 million swiss francs
in relief funds contributed by the United States, Great Britain and The Nether-
lands, in a secret bank account set up through the Swiss National Bank, which the
Japanese government had pledged to release so Swiss workers could buy extra sup-
plies for POW and internees. Instead, the money sat in the Yokohama Specie Bank
till wars end. Over $6.2 million, worth $54 million today, was from the U.S. Treas-
ury; we never asked for a dime of it to be returned.
Although it was a clear violation of international law to do so, Japanese company
heads asked for the use of white prisoners; paid the government two yen per day
58
for the use of each prisoner; agreed to pay the prisoners Japanese soldiers pay, and
were required to house them on company property. Most prisoners never saw any
money; all came home empty-handed and sick. None ever regained full health; all
still suffer nightmares, PTSD, and many residual, compounded health problems.
After the war ended, Japans major industrialists were named as suspected war
criminals, but the indictments were dropped for lack of evidence (no clear paper
trails could be found in time for the trials opening date; and very, very few mem-
bers of the trial teams could speak or read Japanese.) A policy decision was made
to avoid mentioning the names of companies during the trials, according to a mem-
ber of the prosecution team. After a high-profile trial which seemed to drag end-
lessly, 25 Japanese Class A [top leaders] criminals were sentenced. Seven were exe-
cuted; 16 received life sentences; one died in prison before sentencing and another
was declared insane. The rest were released, and further investigations of Class A
criminals were abruptly halted.
Although several hundred Japanese military and civilian war criminals were con-
victed of sentences ranging from death to life imprisonment to 25 years or more,
most death sentences were commuted, and no convicted Japanese served more than
ten years. The majority were released when our occupation officially ended in 1952;
by 1958 all had been released and Sugamo Prison was closed because it was empty.
Surviving American ex-POW were allowed to file claims under the War Claims
Act of 1948 to receive $1.00 per day times the number of days held captive for
missed meals, with a cap of $1500 per claimant. After the 1951 Treaty of Peace
was signed, and our ex-POW were prevented from filing further claims, Congress
passed the War Claims Act of 1952, allowing ex-POW to apply for $1.50 per day
for forced labor and/or mistreatment while in custody. The payment funds came
from $280 million in frozen Japanese and other Axis assets seized in the United
States between 1942 and 1946.
But no one at that time could predict how severe the residual effects of prolonged
malnutrition and the diseases which accompany it would be for these survivors. The
effects of their captivity have continued to compound throughout their lifetimes.
Many have fought for 50 years to receive full disability payments from the Veterans
Administration; some were granted full allowances as recently as 1998 or 1999. In-
formation about their treatment by the Japanese had been so suppressed both dur-
ing and after the war, that many medical personnel at VA centers have had a hard
time grasping the long-term effects of severe malnutrition, or to understand the
types of injuries these men sustained during their captivity.
It is worth noting that the official Japanese government report on the wartime
use of POW labor was not issued until December 1955, long after the conclusion of
the Tokyo War Crimes Trials and the drawing up of the 1951 Treaty of Peace. This
report is based in turn on the periodic reports Japanese companies were required
to file, showing compliance with the regulations on payment of POW and other mat-
ters involving care etc. of POW. The companies apparently stated that payments
had been made to POW and backed up these reports with pay sheets some POW
say they were forced to sign, despite not receiving the stated pay. Also, the compa-
nies reported receipt of relief supplies (Red Cross) but failed to mention that they
did not distribute the packages to the POW.
So it is possible that the Japanese Government, and for that matter our own Gov-
ernment, may have been under the impression that our POW were in fact paid,
housed and cared for to a degree that in fact rarely, if ever, occurred. Red Cross
reports show an acute awareness of this fact (misleading information from Japanese
authorities.)
In other words, the Japanese government may be basing its position on these
rather misleading reports which formed the basis if its governments 1955 official
report. However, I have no evidence one way or the other to suggest that our own
government officials were aware of, or read, the 1955 Japanese government report.
Adequate compensation for the suffering and slave labor endured by our prisoners
remains the largest unresolved issue of the Pacific War. It is hoped that the hearing
conducted by the Senate, Committee on the Judiciary today will bring forth further
discussion and documentation to illuminate the full intention of the San Francisco
Peace Treaty, and of the framers who drafted it. Such illumination may at last bring
some closure to those who became what their Japanese captors liked to refer to as
guests of the emperor. Meanwhile, the ashes of thousands of Americans have long
since been scattered to the winds which blow across Japanese company properties.
I respectfully request that this statement become part of the record of the hearing
conducted by the Senate Committee on the Judiciary June 28, 2000.
59
PREPARED STATEMENT OF CHALMERS JOHNSON
In December 1937, when the invading Japanese army captured the city that was
then the capital of China, Nanjing, it proceeded to rape, torture, and execute many
thousands of Chinese civilians and unarmed prisoners of war. The facts of this
atrocity are not in dispute, although controversy still surrounds the absolute num-
bers of Japans victims. Survivors of this and other instances of Japans brutality
toward civilians and prisoners during wartimein violation of international treaties
to which Japan was a signatory-have repeatedly sought compensation from the Jap-
anese government for their suffering. On September 22, 1999, in Tokyo, the chief
judge of the Tokyo District Court dismissed the most important case concerning the
Nanjing massacre on grounds that individuals do not have a right to sue the Japa-
nese government.
It is in part because the Japanese courts have never once ruled in favor of Japans
victims that California and other American states have recently passed laws allow-
ing former prisoners of war to sue American branches of Japanese corporations for
compensation for their suffering. On August 26, 1999, the California legislature
passed a resolution calling on Japan to pay reparations to United States military
and civilian prisoners of war, * * * the survivors of the Rape of Nanking [Nanjing],
* * * and the women who were forced into sexual slavery and known by the Japa-
nese military as comfort women. The California Legislature also extended the stat-
ute of limitations for World War II lawsuits to the end of 2010, in another piece
of legislation, Senate Bill 1245.
During World War II, some 33,587 United States military and 13,966 civilian
prisoners of the Japanese military were confined in prison camps, where many were
subjected to forced labor. On August 11, 1999, the first individual lawsuit in Califor-
nia was filed on behalf of Dr. Lester Tenney, against Mitsui & Co., Ltd. and related
entities for the slave labor that Dr. Tenney endured in Mitsuis coal mines. Since
then a number of suits have been filed against companies such as Mitsubishi Inter-
national Corp., Mitsubishi Materials Corporation, Mitsui Mining Co., Ltd., Nippon
Steel, Japan Energy, Ishihara Sangyo, Ishikawajima Harima Heavy Industries,
Ltd., Sumitomo Heavy Industries, Nippon Sharyo, Ltd. and other Japanese compa-
nies.
These lawsuits are likely to be much more damaging to Japanese-American rela-
tions than any genuine governmental apology and the payment of token compensa-
tion. Thus far Japans official response has been to stonewall and to argue that the
peace treaty of 1952 settled all claims arising from the war. There is a possible Jap-
anese defense against these lawsuits, but this is assuredly not it. International law
has now progressed to where claims by an individual against a state are recognized.
Moreover, Germany has already agreed to pay large sums to compensate its forced
laborers-in addition to the billions it has paid to Israel and other survivors of the
Nazi genocide against the Jews.
Relying on the peace treaty is not a good defense for several reasons. First, the
suits are not against the Japanese government but against private Japanese cor-
porations. Second, the United States required that Japan pay only minimal repara-
tions after the war because it was trying to integrate Japan into the U.S.s Cold War
structure. Third, the reparations Japan did pay went primarily to corrupt dictators
in places like the Philippines, Indonesia, and Burma, not to individuals who had
truly suffered at Japans hands. Fourth, the precedent of holding Germany, Switzer-
land, and American corporations such as the Ford Motor Co. responsible for their
wartime activities is clearly applicable to Japan.
Japanese government officials acknowledge that Japan paid considerably less in
reparations after the war than other Axis powers and that this favorable treatment
of Japan came about because of the strategy the United States pursued in the Cold
War in east Asia. Thus, for example, Tetsuo Ito of Japans Ministry of Foreign Af-
fairs writes in The Japanese Annual of International Law (No. 37, 1994):
The chaotic international conditions in the midst of the Cold War eventu-
ally favored Japan in terms of the [Peace] treaty contents. The co-drafters
of the treaty [the United States and Great Britain] had obviously eased
their policy on reparations, deciding not to impose a heavy burden on the
Japanese economy, because the rapid recovery of Japan would serve their
interest by helping to strengthen the Western Camp in their defense of
freedom against the Communism about to infiltrate Asia. [p.4]
* * * If we compare the San Francisco Peace Treaty with other peace
treaties after the Second World War, such as the Allied peace treaties with
Bulgaria, Finland, Hungary, Italy and Romania signed on February 10,
1947, we can find that, while the latter provided for specific figures of rep-
arations to be made in kind by the defeated countries, the former treated
60
Japan in a very generous manner by letting Japan negotiate with each
claimant country to make decisions, even regarding important conditions
such as the amount of each reparation. Besides the problem of reparations,
the Allies seemed to have treated Japan more favorably than the European
Axis countries in other matters as well. [p. 43]
The peace treaty was negotiated and signed while the Korean War was actually in
progress. Japan was then the major military staging area for American operations
in Korea, just as a decade and more later Okinawa was for American operations
in Vietnam. The United States treated its fuchin kubo (unsinkable aircraft car-
rier), to use the language of the time, generously and ensured that the other allies
went along with this.
Article 14(b) of the Multilateral Treaty of Peace with Japan,signed at San Fran-
cisco September 8, 1951, and in effect from April 28, 1952, stipulates that Except
as otherwise provided in the present Treaty, the Allied Powers waive all reparations
claims by the Allied Powers, other claims of the Allied Powers and their nationals
arising out of any actions taken by Japan and its nationals in the course of the pros-
ecution of the war, and claims of the Allied Powers for direct military costs of occu-
pation. This is the article on which the Japanese government relies in rejecting all
claims by former P.O.W.s and internees that they be compensated for their illegal
treatment at the hands of the Japanese during the war. But there are legal prob-
lems with this defense, in addition to the political ones already mentioned. One is
described by Tetsuo Ito of the Japanese Ministry of Foreign Affairs as follows: The
waiver of claims of its nationals can not mean the renunciation of such claims by
a state in rigid legal terms, * * * because a state can not theoretically waive the
right of a third person, without its consent, who is not a party to the treaty con-
cerned, regardless of whether it is a state or an individual [J.Ann. Int. Law, No.
37, 1994, p. 68]. Individuals always retain the right to enter a claim based on their
municipal law.
The more serious problem of relying on article 14(b) is its opening clause, which
reads Except as otherwise provided in the present Treaty. Article 26 of the same
Treaty overrides it: Should Japan make a peace settlement or war claims settle-
ment with any State granting that State greater advantages than those provided
by the present Treaty, those same advantages shall be extended to the parties to
the present Treaty. In treaties with the Netherlands, Denmark, Sweden, and
Spain, Japan accepted a release of claims only against the Government of Japan,
not by nationals of those countries against Japanese nationals. The Netherlands
treaty was signed May 13, 1956. Since that time article 26 has superseded article
14(b) with regard to claims by foreigners against Japanese civilians for their actions
during the war.
Japans only real defense would be that it was the United States government that
refused to press the claims of its own citizens against Japan. General MacArthur
decided to exonerate the Emperor from any responsibility for the war-thereby caus-
ing most Japanese to believe that if the head of state was not responsible, then ordi-
nary people and companies were certainly blameless. The surviving American pris-
oners of war thus could make as good a case against their own governments indif-
ference to their suffering as against Japanese corporations today.
Instead of stonewalling, the Japanese government would be wise to take these
suits as an opportunity to deal with some of the unfinished business of World War
II. Perhaps it should seek to create a joint Japanese-American foundation that could
compensate the survivors and also offer to them a sincere apology for their shabby
treatment by both governments a half century ago. Thanks to the Cold War, Japan
enjoyed a long period in which the United States blocked all private claims against
it. Today, most of the plaintiffs in these cases are very elderly. It would be easy
for Japan to pay them. Since World War II, the only two countries that have ever
indicted their own citizens for war crimes are Germany and France. But this is not
something that either Japan or the United States should be proud of. A trial like
that in France in 1997 of Maurice Papon, the wartime mayor of Bordeaux, for col-
laborating in the deportation of Jewish civilians to Germany and his recent recap-
ture after he fled to Switzerland is simply unimaginable in Japan. That is what is
fueling these lawsuits as much as monetary claims.
Chalmers Johnsons latest book is Blowback: The Costs and Consequences of
American Empire (Metropolitan Books, 2000). He is also the editor of Okinawa:
Cold War Island, published by the Japan Policy Research Institute, of which he is
president. He is an emeritus professor of international relations and a specialist on
the political history of East Asia at the University of California, San Diego.
61
(Translation), August 15, 1995.
PREPARED STATEMENT OF PRIME MINISTER TOMIICHI MURAYAMA
The world has seen fifty years elapse since the war came to an end. Now, when
I remember the many people both at home and abroad who fell victim to war, my
heart is overwhelmed by a flood of emotions.
The peace and prosperity of today were built as Japan overcame great difficulty
to arise from a devastated land after defeat In the war. That achievement is some-
thing of which we are proud, and let me herein express my heartfelt admiration for
the wisdom and untiring effort of each and every one of our citizens. Let me also
express once again my profound gratitude for the indispensable support and assist-
ance extended to Japan by the countries of the world, beginning with the United
States of America. I am also delighted that we have been able to build the friendly
relations which we enjoy today with the neighboring countries of the Asia-Pacific
region, the United States and the countries of Europe.
Now that Japan has come to enjoy peace and abundance, we tend to overlook the
pricelessness and blessings of peace. Our task is to convey to younger generations
the horrors of war, so that we never repeat the errors in our history. I believe that,
as we join hands especially with the peoples of neighboring countries, to ensure true
peace in the Asia-Pacific regionindeed, in the entire worldit is necessary, more
than anything else, that we foster relations with all countries based on deep under-
standing and trust. Guided by this conviction, the Government has launched the
Peace, Friendship and Exchange Initiative, which consists of two parts promoting:
support for historical research into relations in the modern era between Japan and
the neighboring countries of Asia and elsewhere; and rapid expansion of exchanges
with those countries. Furthermore, I will continue in all sincerity to do my utmost
in efforts being made on the issues arisen from the war, in order to further
strengthen the relations of trust between Japan and those countries.
Now, upon this historic occasion of the 50th anniversary of the wars end, we
should bear in mind that we must look into the past to learn from the lessons of
history, and ensure that we do not stray from the path to the peace and prosperity
of human society In the future.
During a certain period in the not too distant past, Japan, following a mistaken
national policy, advanced along the road to war, only to ensnare the Japanese peo-
ple in a fateful crisis, and, through its colonial rule and aggression, caused tremen-
dous damage and suffering to the people of many countries, particularly to those
of Asian nations. In the hope that no such mistake be made in the future, I regard,
In a spirit of humility, these Irrefutable facts of history, and express here once
again my feelings of deep remorse and state my heartfelt apology. Allow me also
to express my feelings of profound mourning for all victims, both at home and
abroad, of that history.
Building from our deep remorse on this occasion of the 50th anniversary of the
end of the war, Japan must eliminate self-righteous nationalism, promote inter-
national coordination as a responsible member of the international community and,
thereby, advance the principles of peace and democracy. At the same time, as the
only country to have experienced the devastation of atomic bombing, Japan, with
a view to the ultimate elimination of nuclear weapons, must actively strive to fur-
ther global disarmament in areas such as the strengthening of the nuclear non-pro-
liferation, regime. It is my conviction that in this way alone can Japan atone for
its past and lay to rest the spirits of those who perished.
It is said that one can rely on, good faith. And so, at this time of remembrance,
I declare to the people of Japan and abroad my intention to make good faith the
foundation of our Government policy, and this is my vow.
PREPARED STATEMENT OF MICHAEL D. RAMSEY

My name is Michael D. Ramsey and I am a Professor of Law at the University
of San Diego Law School. I teach and write in the area of foreign affairs law, includ-
ing the law of treaties. Among other matters, I specialize in the legal aspects of
international claims against foreign governments and foreign nationals. I am sub-
mitting this statement for the record in a Hearing to be held by the Senate Judici-
ary Committee scheduled for June 28, 2000, regarding the legal status of claims
against and Japanese nationals by former U.S. Prisoners of War (POWs).
I have been asked to assume that the POWs were held and forced to labor for
private companies in Japan, that such companies were never mobilized under Jap-
anese law, to operate as a part of the war effort under the daily control of the Japa-
nese military; that by treaty such labor could only serve commercial purposes (and
62
could not promote the war effort of Japan); and that these companies were obligated
to pay wages to these laborers at private, commercial rates, but did not do so.
The following sets forth my views on the question whether the 1951 Peace Treaty,
signed in San Francisco between Japan and various allied powers including the
United States (the Treaty), waives the claims of individual U.S. citizens against
private Japanese entities for injuries suffered during World War II. I should note
that my views are not based on an exhaustive review of the history and context of
the Treaty, but only upon my general knowledge of treaty and constitutional law
and practice. For the reasons set forth below, I conclude that the Treaty should not
be read to waive private claims alleged against individuals or entities who were not
acting as agents of the Japanese government.
At the outset I think it critical to distinguish among three types of claims by U.S.
citizens: (1) claims against the Japanese government; (2) claims against individual
Japanese nationals and Japanese entities acting as agents of the Japanese govern-
ment; and (3) claims against individual Japanese nationals and private Japanese
entities not acting as agents of the Japanese government. I propose to discuss only
the third type of claim, and my conclusions with respect to the treaty are limited
to this category of claims, which I shall hereafter call private claims.
The relevant language of the Treaty is Article 14(b), which states:
[T]he Allied Powers waive all reparations claims of the Allied Powers, [and]
other claims of the Allied Powers and their nationals arising out of any ac-
tions taken by Japan and its nationals in the course of the prosecution of
the war * * * (emphasis added).
I assume for purposes of this discussion that the initial part of the Article 14(b)
languagethat is, the waiver of claims of the Allied Powers and their nationals
arising out of any action taken by Japan and its nationalscould be read to encom-
pass all of the above categories of claims, including the private claims. I have not
been asked to consider this issue, and express no opinion on it one way or the other.
However, even if this part of Article 14(b) does include private claims, for the waiver
to apply the second part of the relevant article requires that the claims aris[e] * * *
in the course of the prosecution of the war. It is not at all clear that this language
includes the private claims and in my opinion that is not the best reading of the
language.
To be sure, one might argue that the phrase in the course of the prosecution of
the war encompasses all actions by whatever parties that directly or indirectly
aided the Japanese war effort. I assume that those who would find a waiver of the
private claims in Article 14(b) are relying on such a reading. This is quite a broad
reading, as it would encompass, in effect, any action taken during wartime that ben-
efited Japan or weakened the United States, as any such action would contribute
to Japans war effort. But there is also a narrower reading available: specifically,
that since only the government prosecutes (that is, carries into execution) a war,
only actions of the government and its agents related to the war effort would be
included, and not all private actions occurring during the war. Thus, the phrase in
the course of the prosecution of the war is at least ambiguous as to whether it en-
compasses actions of purely private parties not acting under the direction of the
Japanese government.
I believe that the narrower reading is not only plausible, but is the preferred
reading of the relevant language. This is based on four factors, as set forth below:
(1) historical practice; (2) constitutional considerations; (3) ordinary usage, and (4)
other portions of the Treaty.
First, with respect to historical practice, agreements settling claims between the
United States and foreign nations are of course quite common, dating to the earliest
days of the Republic. However, it is highly unusual for a claims settlement treaty
to waive purely private claims. Most, if not all, claims settlement agreements to
which the United States is a party waive claims of the United States and of U.S.
nationals against a foreign government and (sometimes) against agents of the for-
eign government. Although I have not undertaken a comprehensive study, I am gen-
erally familiar with claims settlement agreements entered into by the United States
and I personally am not aware of any claims settlement agreement of the United
States that manifestly waives claims between private U.S. nationals and private for-
eign nationals for purely private conduct. At best, such a waiver would have to be
viewed as highly unusual. The claims settlements that have been extensively liti-
gated, such at those considered by the U.S. Supreme Court in the Pink and Belmont
cases and more recently in Dames & Moore v. Regan, only waived or adjusted claims
by private U.S. individuals against the foreign government itself and individual and
corporate agents of the foreign government. In Dames & Moore, for example, the
Court referred to the settlement power as the sovereign authority to settle the
63
claims of its [the U.S.s] nationals against foreign countries. Dames & Moore v.
Regan, 453 U.S. 654 (1981).
As I have indicated, reading Article 14(b)s phrase in the course of the prosecu-
tion of the war broadly to include private wartime activities would result in an ex-
tensive waiver of claims by private individuals against private individuals. That is
entirely contrary to historical practice, which is not to include such claims within
negotiated intergovernmental claims settlement agreements. On the other hand,
reading in the course of the prosecution of the war narrowly to refer to only gov-
ernmental activities would make the 1951 Treaty accord with historical practice of
limiting intergovernmental settlements to claims against the foreign government
and its agents.
Second, a broad reading of the phrase in the course of the prosecution of the war
leads to serious constitutional difficulties, while a narrow reading of the phrase is
somewhat less constitutionally problematic. The relevant constitutional provision is
the Fifth Amendment, which among other things prohibits the U.S. government
from taking private property without just compensation. It is certainly arguable
that a private legal claim is property within the meaning of this clause. Indeed,
at least one court of appeals, relying on Supreme Court precedent, has squarely de-
clared that There is no question that claims for compensation are property inter-
ests that cannot be taken for public use without compensation. In re Air Crash in
Bali, Indonesia, 684 F2d 1301 (9th Cir. 1982). Under this reading, if the U.S. gov-
ernment waived private claims in Article 12(b) of the Treaty, that was a taking of
private property. It is also certainly arguable that the owners of that property never
received adequate compensation for it. Indeed, Article 14(a) of the Treaty seems to
acknowledge that the United States is settling claims against Japan for far less
than they are worth in order to support Japans economy. Thus the Treaty, if read
broadly, appears to take private property without just compensations, contrary to
the Fifth Amendment.
It is true that a similar argument could be raised against a waiver of claims of
U.S. citizens against Japan and its agents. These too, it might seem, are property
interests worthy of constitutional protection; indeed this was suggested by Justice
Powell in his dissenting opinion in Dames & Moore, 453 U.S. at 691. However,
courts that have addressed similar claims since Dames & Moore have treated them
differently than, for example, the Ninth Circuit treated purely private claims in the
Bali case. The case of Shanghai Power Co. v. United States, 4 Cl. Ct. 237 (1983),
affirmed without opinion, 765 F.2d 159 (Fed. Cir. 1985), is illustrative. Decided by
Judge Kozinski, then on the court of claims and now an intellectual leader of the
Ninth Circuit, the Shanghai Power case involved President Carters claims settle-
ment with China. The plaintiff, Shanghai Power, had a claim against an instrumen-
tality of the Chinese government which the agreement settled for a fraction of its
value, and Shanghai Power alleged a violation of its rights under the Fifth Amend-
ment. The court agreed that Shanghai Powers legal claim was property, but held
that no compensable taking had occurred, essentially on two grounds: (1) the unique
nature of claims against foreign governments, and (2) the longstanding historical
practice of the U.S. government settling claims against foreign governments without
the affected parties consent. Similarly, in Marks v. United States, 15 Cl. Ct. 609
(1988), the court of claims rejected an alleged unconstitutional taking based on the
U.S. governments settlement of private claims against the government of Iran and
its agents.
Of course, the decisions in Shanghai Power and Marks may not be correct, as the
Supreme Court appeared to leave that question open in the Dames & Moore decision
and has not definitely ruled on it since then. However, at a minimum there appears
to be some support for the proposition that the courts would not find a constitu-
tional violation where the U.S. government settles individual claims against a for-
eign government it and its agents without the consent of the claimholder, even
though in general abrogation of private legal claims is constitutionally problematic
under the Fifth Amendment. As a result, a narrow reading of Article 14(b) of the
1951 Treaty would likely render the Treaty constitutional, if the rule of Shanghai
Power were applied. On the other hand, a broad reading of Article 14(b)such that
it extended to claims between private partieswould raise serious constitutional
difficulties under the Bali case. The reasoning that allowed the Shanghai Power
court to avoid finding a constitutional violation would not be available with respect
to the 1951 Treaty if Article 14 (b) is read broadly to apply to private claims. This
again suggests that the narrow reading should be preferred.
A third reason for preferring the narrow reading of the phrase in the course of
the prosecution of the war is that even in isolation, that is the better reading of
the language. The relevant dictionary definition of to prosecute is to carry on.
War is a public act, carried on (prosecuted) by a government through its agents.
64
There is no such thing as a private war. Individuals not in government service
do not carry on a war. They may support the war, but they do not prosecute
it, if prosecution is read, as the dictionary says it should be, to mean mean carry-
ing on. Thus claims do not arise from the carrying on of war unless they arise
from the activities of those who are carrying it onnamely the government, acting
through its agents. To put it in practical terms, if an individual Japanese national
living in a neutral country murdered an individual U.S. national in that neutral
country, even during wartime, this would not be considered part of the war effort
because it is not endorsed by the Japanese government. Rather, it would be treated
as a simple murder. It makes little sense to speak of this as part of the prosecu-
tion of the war, even if the reason for the murder was that the Japanese citizen
was motivated by patriotic zeal, and even if it indirectly benefited the Japanese gov-
ernment in some way. On the other hand, if the murder was committed by a Japa-
nese government agent, for some purpose connected to the war, that clearly seems
to be a prosecution of the war. The difference is the government agency, because
governments, and not private citizens, prosecute wars.
This ordinary usage is confirmed by the way the phrase prosecution of the war
is used in U.S. statutes. When used in U.S. statutes, it plainly refers to the U.S.
governments war effort, not to all private activities that assist or relate to the war
effort in some way. For example, the Wartime Suspension of Limitations Act, 18
U.S.C. 3287, provides that When the United States is at war the running of any
statute of limitations applicable to any offense * * * committed in connection with
* * * any contract, subcontract, [or] purchase order which is connected with or re-
lated to the prosecution of the war * * * shall be suspended. As its context makes
clear, the Act intended by this language to suspend the statute of limitations on a
narrow class of actions: specifically, fraud in wartime government procurement con-
tracts. See Bridges v. United States, 346 U.S. 209 (1953) (noting that the general
purpose of the statute was to safeguard U.S. treasury from wartime fraud); United
States v. Grainge, 346 U.S. 235 (1953) (discussing the Act as applying to fraud in
government contracts). The Act did not create a general suspension of the statute
of limitations in private contract cases during wartime, and to my knowledge no
court has suggested such an interpretation. The obviously limited scope of the Act
necessitates a narrow reading of the phrase prosecution of the war encompassing
only the governments war effort. If prosecution of the war included purely private
conduct during wartime that had some connection with or benefit to the war effort,
then the language of the Act would suspend the statute of limitations with respect
to much purely private activity that occurred during the wara reading that has
never occurred to anyone, interpreting the statute. Thus reading prosecution of the
war in the 1951 Treaty narrowly to refer to war-related activities of the Japanese
government is consistent with that phrases statutory usage, while a broader read-
ing of the language is not.
Finally, evidence from other parts of the Treaty confirms that the narrow reading
is the correct one. First, there is an official French version of the Treaty, as well
as the official English version. The French version of Article 14(b) renders the pros-
ecution of the war as la conduite de la guerre. The relevant French dictionary
definition of conduite is conduct; * * * direction; supervision. Thus the French
version of the Treaty waives claims arising from the conducting, direction or super-
vision of the war. These words clearly refer to actions of one who has control over
the war effort, which can only be the government and its instrumentalities. Even
if the word prosecution is thought ambiguous, surely conduct, supervision and
direction are not: governments and government agents (but not purely, private in-
dividuals), conduct war or direct war or supervise war. In short, the French
version (conduite) plainly limits itself to the governments war effort, and does not
encompass private activities. This suggest that the English version, prosecution,
should be read equivalentlythat is, as not encompassing purely private activity.
That reading is confirmed by other parts of the Treaty, specifically two sections
of Article 19. When the parties to the Treaty intended a broad waiver of claims, they
used broader language than Article 14(b). In Article 19(a), Japan waives all claims
of Japan and its nationals against the Allied Powers and their nationals arising out
of the war * * * While it is not obvious what claims this encompasses, it certainly
seems broader than claims arising out of * * * the course of the prosecution of the
war (else the phrase the course of the prosecution of the war would be super-
fluous). It seems likely that the parties intended for Japan (but not the Allies) to
make a broad waiver, extending to at least some private claims having a close link
to the war. In addition, in Article 19(a), Japan waived all claims (including debts)
against Germany and German nationals on behalf of the Japanese government and
Japanese national * * * for loss or damage sustained during the war. This appears
to be an even broader waiver encompassing essentially everything that happened
65
in the war years. These three distinct ways of expressing waiver of claims suggested
that each should be given a distinct meaning, and the only reasonable way to do
this is to read prosecution of the war narrowly so that it does not swallow the
other two categories.
In summary, I conclude that even assuming Article 14(b) of the Treaty extends
to individual claims against Japanese nationals in some instances, it would only
apply to those situations in which the defendant was acting as an agent of the Japa-
nese government in carrying on the war effort. (Thus a U.S. national could, under
this reading, not sue a Japanese military officer in his individual capacity for battle-
field atrocities). Only these cases are properly viewed as being part of the prosecu-
tion of the war as required for the Article 14(b) waiver. Private parties do not
prosecute a war, so purely private claims do not arise out of actions taken in the
course of the prosecution of the war. This reading is consistent with the ordinary
meaning of the phrase to prosecute; with other evidence from the treaty itself, in-
cluding the French version and the phrasing of the Article 19 waivers; with histori-
cal practice, in which intergovernmental waiver of purely private claims without
consent of the claimholder is at best unusual; and with constitutional requirements,
which would find waiver of purely private claims to be constitutionally suspect. On
the other hand, the broader reading that would encompass all private claims within
the Article 14(b) waiver is not consistent with the most natural reading of the rel-
evant phrase, creates tensions with other parts of the document, and is historically
anomalous and constitutionally suspect, For these reasons, I conclude that the best
reading of the Article 14(b) waiver is that it does not extend to purely private
claims.
PREPARED STATEMENT OF PAUL W. REUTER

I wish to thank Chairman Hatch and the Committee of the Judiciary for the op-
portunity to present these comments regarding the maintenance, treatment, trans-
fer and slave labor conditions suffered by American Prisoners of War while held cap-
tive by the Imperial Japanese Military Forces during World War Two.
Ten and one-half hours after the attack upon the Hawaiian Islands, the Japanese
military bombed Clark Field in the Philippines, destroying 50 percent of the US
Army Air Corps heavy bombardment offense inventory in the Far East area. Lack
of operational aircraft plus superior Japanese air power forced trained airmen and
associated military personnel into front line duties usually employed by Infantry
and Artillery units. Facing overwhelming odds, extreme shortages of food, medi-
cines, defective ordinance, personal maintenance equipment and an unfamiliar lead-
ership situation; a surrender to the enemy was made on 9 April 1942.
Surrender was followed by the Bataan Death March and incarceration at Camp
ODonnell in Tarlac Province on Luzon. Extreme shortage of food, water, medical
attention, plus the severe weather conditions of a hot tropical climate suffered under
the Japanese captors rules, resulted in the death of many hundreds of men.
The Japanese sent work details from Camp ODonnell, and later Cabanatuan, to
areas on Luzon Island such as the Tayabas Road Detail, the Nichols Field runway
detail, Bataan Peninsula detail to reclaim Army ordinance, Pier 7 stevedore detail
plus a large farm detail to Davao Penal Colony on Mindanao. In late Summer, 1942,
drafts of POWs by the thousands were shipped to the Japanese home islands to
support a severe labor shortage caused by the drain of manpower to sustain combat
efforts against the approaching Allied armies.
The transports used for POW transit to Japan were derelict tramp steamers of
aged and uncertain vintage. Most were two hold cargo ships having one or two cargo
decks below the main deck. Many had hauled horse drawn artillery South from
Japan, then modifying the lower deck to accommodate men where stalls had held
horses. A stall five feet wide would contain two horses, but with a shelf built five
feet above the deck it held ten POWs cramped together and limiting lateral space
to a cramped twelve inches. Food and water were lowered from the hatch opening
in five gallon cans when weather permitted moving across the main deck to deliver
the foodstuffs.
Cans were lowered to serve as latrine vessels but these filled rapidly and were
not emptied soon enough to prevent overflow of waste products. On our ship the
Corol Maru a wooden latrine containing five holes, or seats, hung over the forward
rail in a position where the user of the latrine was hanging off the side of the ship
with nothing but the Ocean beneath. Food consisted of rice (about one cup) twice
a day, and, weather and ship movement permitting, some sort of thin soup. Water
was lowered by cans into the hold to be dispensed to POWs below, usually by table-
spoons full per man and never enough to satisfy. When the weather turned foul,
66
and lasted the full trip from Formosa to the port of Mogi on the Island of Hokioda,
the hatch cover was closed and, on occasion, the canvas cover was battened down
leaving the hold in pitch black darkness.
Our ship left Manila for Formosa on 21 September 1943. We stayed a few days
at anchor in a locked in harbor on Formosa, about fifty feet from another ship paint-
ed white and sporting large green crosses but with artillery barrels visible under
the canvas canopy. The ship flew the flag of a Hospital ship and carried troops while
we traveled in a targeted ship to Japan. Five or six bodies were off loaded while
at anchor, presumably from the aft hold. Our transport had two holds, the fore hold
held 400 POWs and the aft hold held 480 POWs. The only contact between men
in these holds occurred when men were dispatched to carry food and water to the
individual holds.
Our trip to Mogi was quick but horrendous travel. With a heavy weather, stormy
ocean the ship headed on a direct route to Mogi because hunting submarines could
not operate in such stormy weather. Many other Hell ships carrying POWs to
Japan were forced to hug coastlines, travel in convoy, do defensive sailing maneu-
vers, dodge torpedoes and submarines; all of these forcing long days on the water
and causing many deaths from the maltreatment. On three of these Hell ships over
4000 American POWs lost their fives, but deaths and casualties were rampant on
many other ships taking POWs to Japan for continued labor.
On arrival at Mogi the fore hold POWs were fined up and marched to the railroad
station, boarded a train and after an overnight trip arrived at Hirahata, a town on
the inland sea, opposite Shikoko Island, in the Osaka Protectorate and about 35
miles southeast of Osaka. Our group of 400 joined the 80 Marine and Navy person-
nel from Wake and Guam Islands already in the camp. We began work at the steel
mill operated by Seitetsu Steel the next day. The mill was located about two miles
from the camp and the town of Hirahata, on a road that lead directly to the mill.
We marched that road, sometimes jogged, every day under the charge of civilian
steel company overseers who also assigned jobs, set completion levels, and adminis-
tered physical punishment, sometimes without reason, as at those times when lan-
guage differences defied communication.
My first assignment was in a machine shop as operator of a Shaper, or horizontal
lathe, a device that I was totally unfamiliar with. After operating this Shaper for
six months I was observed committing an unauthorized act, which resulted in a
beating by the military commander, and banishment from the machine shop detail.
The majority of POWs worked the yard detail which included jobs such as lifting,
carrying, chipping, shoveling, stevedoring, etc., all necessary around a steel mill.
This mill was a large steel producer and the site contained a large coke and gas
central for the nearby area which contained many mills and factories in either direc-
tion along the coast.
The work on yard details was strenuous and energy draining. Surviving three and
a half years on drastically reduced diets, when daily calorie intake measured well
under 1000 calories, and forced to perform a required quantity of work under primi-
tive, hazardous conditions without the use of safety equipment resulted in terribly
malnourished underweight bodies. At the outset of the war my weight was 208
pounds. At Hirahata my weight reached 130 pounds. We worked as stevedores un-
loading coal ships, iron ore ships, loading slag, unloading pig iron from the foundry
(a full pig weighed 145 pounds) placing the pigs in stacks, loading the pigs into rail
cars for furnace use, unloading rail cars of white rock, chipping large bricks for fur-
nace lining, unloading coal rail cars at the coke plant and loading benzine onto rail
boxcars.
The barracks were terrible and unheated, baths were available about twice per
month, meals were usually a cup of rice in the morning, another cup on the job
around noon and rice plus soup or diacon, or occasionally tofu or dried fish or silk-
worms soaked in brine. We received two Red Cross packages in the two years at
the camp. Upon arrival we were fed under the civilian ration of 750 calories per
day which proved too little intake for large American frames. After a few months
the effect of our deteriorating condition and low work effort caused the Japanese
to put Americans on the military ration of 850 calories per day.
The camp was governed by Japanese military. A Lieutenant, a noncom, a medic
and perimeter and gate soldiers were all of the military. Workers were turned over
to company overseers who marched us to work, gave out work assignments, admin-
istered punishment, and returned us to the camp at night. We received a day off
about every three weeks, to clean ourselves and launder clothes. We did not receive
pay, as such, although the Japanese said they were paying us. There were two ver-
sions of our pay status; the first explanation was that the mill paid for our food and
lodging and this amount equaled the pay we would have received. This method
meant we worked only for the opportunity to survive. This system is borne out in
67
that we worked under the edict no work, no eat so all workers able to walk to
the mill, made the trip. We POWs disregarded this system and everyone shared
alike.
The second method of payment for our work also resulted in zero transfer of
money. Under this method monies earned were deposited, by individual name, in
a Postal Savings Account. However, no books were kept and no POW has ever bene-
fited from such an account.
Some of my fellow POW friends swear that a Code of Silence has been imposed
upon them which prevents them from discussing their experiences while a prisoner
of war of the Japanese. Other former military members and civilians who, during
the period immediately following the surrender of Japan, participated in the discov-
ery, examination, analysis and prosecution of Japanese involved in biological war-
fare and inhuman medical experiments have, without divulging classified material,
made remarks very disturbing to the POWs. Remarks such as: I am sorry we did
not tell the men what was happening to them, or at least we should have told the
VA., and, Each Japanese POW should have an extensive blood serology examina-
tion. and, Americans were used in Unit 731 experiments.. At Hirahata, in the two
year stay, three times Medical personnel came to our camp, lined everyone up, and
injected some undisclosed material into the left nipple. One wonders, Why always
the left nipple? and, Why not inform our Doctor about the medication?
Secrets are necessary to proper functioning of the military and foreign service in
their dealing in other entities, but secrets involving the feeding, medicating, treat-
ment and anything affecting the well being of individuals should not be kept secret,
especially to the individual who is now and has been hurt by the authorities not
divulging information pertinent to the individuals life. The President has opened
many of the files relating to the World War Two European campaign and treatment
administered by the Nazi regime. Why keep the files on Japans actions relating to
their war effort and culpability in unauthorized acts toward Asian and American
closed after sixty years have past? Cannot the Judiciary Committee recommend
such a move?
I Love my country. I fought for my country, willingly and aggressively without
expectations. It is time for my country to level with me about the WHY of the dele-
terious actions which affect me and concern me.
I call upon the Senate Judiciary Committee to fully support the Bataan-Corregi-
dor compensation entered by Sens. Bingaman and Domenici.
In conclusion, let me be the first Japan held POW to call upon President Clinton
to declassify World War Two records thru the Treaty date in 1952.
PREPARED STATEMENT OF JOHN M. ROGERS

I am the Lewis Professor of Law at the University of Kentucky College, of Law.
I have taught public international law regularly since 1979 and U.S. constitutional
law since 1982. I have also taught international law as a Fulbright Professor for
a year at the Foreign Affairs College in Beijing, China, as a Fulbright Professor for
a year at Zhongshan University in Guangzhou, China, and as visiting professor at
the University of San Diego Law School. My research scholarship has focused to a
large extent on the relation between domestic and international legal systems. I re-
cently published a book describing and justifying the accepted, albeit limited, role
of public international law in U.S. law. Before becoming a professor, I engaged in
appellate litigation practice for the Civil Division of the United States Department
of Justice, for four years. Later, as Visiting Professor at the Department of Justice
in 198385, I represented the Department of State, the Immigration and Natu-
ralization Service, the Defense Department, the Treasury Department, the Federal
Reserve Board, and other federal agencies in a number of federal courts appeals in-
volving foreign affairs law and international law.
I have been requested by counsel for United States nationals who were held by
the Government of Japan during the Second World War as Prisoners of War to con-
sider the application of international legal principles in the context of the pursuit
by those nationals of certain claims. In particular, I am advised that these nationals
are pursuing claims in the state and federal courts of the United States against en-
tities organized under the laws of Japan which, during the Second World War, di-
rectly employed these Prisoners of War as laborers, allegedly failed to pay them
wages required under international and Japanese law, and allegedly tortured them
or committed acts of gross inhumanity, all in violation of international and Japanese
law standards. In addition, I am advised that California law allows such actions
also to be pursued against subsidiaries of these entities operating in the United
States and that such subsidiaries are also defendants in the pending litigation.
68
I have been advised that the defendants have invoked the terms of the 1951 Trea-
ty of Peace with Japan (and particularly Article 14(b) of that Treaty) as a defense
to these actions. After review of the Treaty and materials available from public
sources, as well as the memoranda regarding Article 14 submitted in these cases,
I have reached an opinion that Article 14(b) does not preclude actions brought by
United States nationals in United States courts under domestic (i.e., Japanese or
United States) law.
The plain meaning of the language of Article 14(b) of the Treaty of Peace with
Japan in which the Allied Powers waive * * * claims of the Allied Powers and
their nationals arising out of any actions taken by Japan and its nationals in the
course of the prosecution of the war is that it extends only to international claims
in respect of nationals. Such claims are well understood to be governed by the inter-
national legal system even though they arise by virtue of harms to individuals.
States of nationality of the victim have complete control ever such claims, and may
settle them over the objection of the victims. The Peace Treatys use of the word
waive indicates unmistakably that such international claims are contemplated.
Domestic law claims, in contrast, are subject to national or local law, even though
international matters may be involved. A private individuals claim under domestic
law cannot be waived by the state, because it is not the states claim under the
domestic legal system.
A clear understanding of the distinction between international law claims and do-
mestic law claims makes the above conclusion inescapable. The two different types
of claims arise under different law, with different fora, different enforcement mecha-
nisms, and usually with different parties. An international claim in its purest form
is a claim between nation-states. The Statute of the International Court of Justice
reflects this by providing that only states may be parties before the Court. I.C.J.
Stat. art. 34(1). The body of law that applies to an international claim is found in
international treaty and custom, and not generally from the tort or contract law of
particular states, which may after all be different. International claims are typically
resolved by diplomacy, but may be subject to international arbitration, or even sub-
mitted to international courts like the International Court of Justice. The law ap-
plied in such fora is treaty law and customary international law, and not the domes-
tic law of the states parties. (E.g., I.C.J. Stat. art. 38(1); General Claims Convention
(Mexico-U.S.), Sept. 8, 1923, art. II, reprinted in 4 U.N. Repts.. of Intl. Arb. Awards
11, 12.) Enforcement of such claims proceeds the way any treaty obligation is en-
forced. That is, states presumably obtain advantage from being seen as complying
with international obligations, and therefore make good on international claims ac-
cepted as valid within the international legal system.
An international claim can be on individual claim in the sense that state A owes
State B an obligation not to mistreat a national of State B in a certain way. This
occurs also when State A fails to give the national of State B the protection that
international law requires. For instance, Iran violated the international law rights
(under treaty law and customary international law) of the United States by not pro-
tecting individual U.S. diplomats from Iranian mobs (see Case Concerning United
States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1990 I.C.J. 3, 31
33), and the United States in 1891 violated the international law rights of Italy by
permitting a mob to lynch Italians in New Orleans (see Lynching of Italians at New
Orleans and Elsewhere, 6 J. B. Moore, Digest of International Law 1026, at 837
(1906)). In these situations the harm to an individual violated an international obli-
gation defined by international treaty and international customary law. The claim
is an individual one in the sense that harm to an individual is the basis for the
claim, and the individual often must have exhausted local remedies before the inter-
national claim way be upheld. And when a claim is paid to the claiming state, it
is normally turned over by that state to the injured individual. But in concept the
international claim is one brought by, and under the control of, the state of nation-
ality of the individual victim. A state may settle or waive such claims since it is
the party making the claim, and need not get the approval of the individual victim.
See 8 M. Whiteman, Digest of International Law 1216 (1963).
In contrast, a domestic law claim is brought under domestic (i.e, national or local)
law, such as common law contract or tort law, or statutory antitrust or employment
discrimination law. The parties are typically private individuals and corporations
(but may include states and government agencies, to the extent that they have per-
sonality within the domestic legal system). The forum is generally a court or adju-
dicative agency of the nations government or its subdivisions. The enforcement
mechanism is the executive arm of the government, which insures that judgments
are enforced. Of course the government can affect the rights and obligations of par-
ties to domestic law claims, for instance by legislating to change the law applicable
to such a claim. But such a change of rights or obligations would only in the most
69
puzzling fashion be called a waiver. The government may not waive the claim of
its national under domestic law, since it does not represent that individual, nor does
it own the claim in any sense even remotely like it owns individual claims under
international law.
The law of one system may refer to, and sometimes even incorporate, the law of
the other. A treaty may, for instance, refer to the domestic law of the parties. In
the other direction, a statute may refer to, or incorporate, treaty language. My re-
cent book is largely a survey of the various ways in which domestic law refers to
international law. International Law and United States Law, Ashgate Press, 1999
(hereinafter IL&USL). But international claims remain something very distinct
from domestic law claims. Under domestic law, for instance, the Constitution as in-
terpreted by the Supreme Court is the highest domestic law of the United States,
regardless of what any treaty says. See Reid v. Covert, 354 U.S 1, 1518 (1957) (plu-
rality opinion). Under international law, in contrast, a valid treaty is higher than
anything in the U.S. Constitution. See Vienna Convention on the Law of Treaties,
art. 27, 1155 U.N.T.S. 331.
It is also true that one action may result in both an international claim and a
domestic law claim. The categories actually overlap in this sense, but an inter-
national claim is often not sufficient to raise a domestic law claim, and a domestic
law claim is often not sufficient to be an internation law claim. For instance, an at-
tack on a diplomatnot prevented by local authoritiescould give rise to a tort
claim for battery by the diplomat against the attacker under California law, and to
an international law claim by the sending state against the United States. But
many tort and contract claims, even against foreign nationals, and even against for-
eign states, are not sufficient for the United States to raise an international law
claim. Indeed, the United States generally refrains from raising contract claims at
the international level, unless there has been something like a state refusal to pro-
vide a fair forum. 8 M. Whiteman, Digest of United States Practice International
Law 906 (1963); 1975 Digest of United States Practice in International Law 485.
And many international claims do not raise the possibility of a domestic law claim.
For instance, if the United States were to pass legislation permitting violation of
a binding UN Security Council resolution embargoing some rogue regime, no claim
would lie under U.S. law against an individual selling goods in violation of the em-
bargo, even though a valid international claim could presumably be brought against
the United States (see Diggs v. Shultz, 470 F.2d 461 (D.C. Cir. 1972)).
The overlap is in a very rough way analogous to the overlap of tort law and crimi-
nal law within the United States domestic legal system. Tort law and criminal law
are different bodies of law, with generally different purposes and different parties.
Mere negligence resulting in injury may be tortious but not criminal. And driving
recklessly without hurting anyone may be criminal but not tortious. But careless
driving may in some cases be both a crime and a tort. It does not follow, though,
that the tort claim can be waived by the criminal prosecutor. The government is the
party in interest bringing a criminal case, it brings the case in the interest of the
public, even though the victim is an individual. The government can settle, criminal
claims, even over the objection of the victim, in the greater interest of the general
public. It can be said to waive future prosecution. But the government is not the
party in interest in a civil tort suit, and it would be a puzzling use of words for
a government prosecutor to waive future tort litigation brought by the victim.
Until the O.J. Simpson case, many non-lawyers may not have clearly understood the
way in which resolution of a criminal case does not control resolution of a civil case.
But the difference was always there. Similarly, many lawyers misapprehend the
clear difference between an international law claim and a domestic law claim, but
the difference still there.
As. pointed out in paragraph 7, a government may of course change domestic law,
and thereby change the content of domestic law rights and duties. Typically this is
done by legislation, but in the United States it can also be done by self-executing
treaty provision (President plus 23 Senate approval), by congressionally approved
executive agreement (President with statutory authorization), and (in a limited cat-
egory of cases) by executive agreement without explicit congressional authorization
(see United States v. Pink, 315 U.S. 203 (1942)). For instance, the self-executing
treaty provision at issue in the famous case of Martin v. Hunters Lessee, 14 U.S.
(1 Wheat.) 304 (1816), changed the domestic law rights of private parties contesting
the ownership of real property in Virginia. See Fairfaxs Devisee v. Hunters Lessee,
11 U.S. (7 Cranch) 603 (1813). And the executive agreement upheld in Darnes &
Moore v. Regan, 453 U.S. 654 (1981), changed the domestic law rights of private
contractors raising domestic law contract claims against instrumentalities of the
Iranian government.
70
Article 14(b) of the Treaty of Peace with Japan by its plain terms contemplates
resolution of international law claims against Japan. This is because of the use of
the word waive. The United States can waive individual claims under inter-
national law, because such claims are claims of the United States in important and
legally relevant ways. It would make no sense for the United States government to
waive claims of individuals under domestic law. In order to extinguish (or even
to affect) domestic law claims, some different language would be required. Waive
means give up, relinquish, or surrender. To extinguish domestic law claims, in con-
trast, one would expect language like extinguish, suspend, invalidate, nullify,
or the like. Thus, the executive agreement upheld in Dames & Moore v. Regan, 453
U.S. 654 (1981), provided that the United States was obligated
to terminate all legal proceedings in United States courts involving claims
of United States persons and institutions against Iran and its state enter-
prises, to nullify all attachments and judgments obtained therein, to pro-
hibit all further litigation based on such claims, and to bring about the ter-
mination of such claims through binding arbitration.
453 U.S. at 665, quoting directly from the executive agreement. Or instead of pro-
hibiting domestic litigation, a self-executing treaty might directly change domestic
law obligations. For instance, the following treaty provisions changed what other-
wise would have been the domestic law rights or obligations of private parties in
the United States courts:
The citizens [of the Parties] shall have liberty to * * * carry on trade * * *
upon the same terms as native citizens or subjects. (Asakura v. City of Se-
attle, 265 U.S. 332, 340 (1924).)
A national of the other state shall be allowed a term of three years in
which to sell [certain inherited real] property * * * and withdraw the pro-
ceeds * * * free from any discriminatory taxation. (Clark v. Allen, 331 U.S.
503, 507508 (1947).)
in case real estate situated within the territories of one of the contracting
parties should fall to a citizen of the other party, who, on account of his
being an alien, could not be permitted to hold such property in the State
* * * in which it may be situated, there shall be accorded to the said heir,
or other successor, such term as the laws of the State * * * will permit to
sell such property, he shall be at liberty at all times to withdraw and export
the proceeds thereof without difficulty. * * * (Hauenstein v. Lynham, 100
U.S. 483, 486490 (1879).)
no higher or other duties, charges, or taxes of any kind, shall be levied by
one country on removal of property therefrom by citizens of the other coun-
try than are or shall be payable in each State, upon the same, when re-
moved by a citizen or subject of such state respectively. (Nielsen v. John-
son, 279 U.S. 47, 50 (1929).)
Article 14(b) of the Treaty of Peace with Japan contains no such language, The arti-
cle simply does not refer in any plain way to domestic law rights, obligations, or
claims. Instead, it waives claims of the United States government, including both
claims by the nation as a whole, and international law claims of the United States
in respect of nationals.
This conclusion says nothing about whether Article 14(b) is self-executing.
Whether a treaty provision is self-executing determines whether the provision
changes domestic law without implementing legislation by Congress. Only it Article
14 obligated the United States to extinguish a category of domestic law claims, or
to change domestic law rights or obligations, and no legislation implemented the ob-
ligation, would a court have to determine whether the obligation was self-executing
as a matter of United States law. See IL&USL at 7687. But where a treaty provi-
sion does not obligate the United States to change its domestic law in the first place,
it is a question of the most conjectural sort to ask whether, if it did, it would be
self-executing. Accordingly, no authorities dealing with whether a treaty provision
is self-executing are relevant to the conclusion that the provision simply does not
extend to domestic law claims.
That Article 14(b) does not extend to domestic law claims of nationals is directly
supported by the contemporaneous Stikker-Yoshida correspondence of 1951. By note
of September 7, 1951. Netherlands Minister of Foreign Affairs Dirk Stikker drew
the attention of the Prime Minister of Japan to Foreign Minister Stikkers words
addressed to the Peace Conference on the previous day:
It is my Governments view that article 14(b) as a matter of correct inter-
pretation does not involve the expropriation by each Allied Government of
the private claims of its nationals so that after the Treaty comes into force
these claims will be non-existent.
71
The question is important because some Governments, including my own,
are under certain limitations of constitutional and other governing laws as
to confiscation or appropriating private property of their nationals. Also,
there are certain types of private claims by allied nationals, which we
would assume the Japanese Government might want voluntarily to deal
with in its own way as a matter of good conscience or of enlightened expedi-
ency.
This statement, is perfectly consistent with reading the waiver with respect to na-
tionals found in Article 14(b) to extend only to international law claims of states
in respect of individuals, and not to claims of nationals under domestic legal sys-
tems, Indeed, it is otherwise difficult to make sense of the Netherlands Foreign Min-
isters statement.
That Article 14(b) does not extend to domestic law claims of nationals is further
supported by a law review article by the Counselor, at the time of writing, of the
Japanese Embassy in London. Tetsuo Ito, Japans Settlement of the Post-World War
II Reparations and Claims, 34 Japanese Annual of International Law 38 (1994). Mr.
Itos analysis, though it is his own and does not purport generally to represent offi-
cial Japanese government opinion, has particular weight inasmuch as Mr. Ito is a
former director of the Legal Affairs Division of the Treaties Bureau of the Japanese
Foreign Ministry. At the end of a clear two-page discussion of the nature of inter-
national claims in respect of individual nationals, id. at 6769. Mr. Ito reaches the
following conclusion, describing it as the position of the Japanese Government:
[I]t seems the following view of the Japanese Government is persuasive:
the waiver by a state of claims of its nationals, provided for in treaties
concerned, does not mean the renounciation of the right to claims them-
selves, which its nationals possess, or, at least, can claim to possess, on the
basis of its municipal laws, but means the renounciation of the right of dip-
lomatic protection, which the state possesses, in respect of the claim of its
nationals, under international law. Therefore, after waiving the claims of
its nationals in treaties, the state can not take up the issue of such claims
on an intergovernmental basis, even if its individuals request to do so.
Id. at 6869.
Finally, the Statement of Interest by the United States is remarkably bare of sup-
port for its apparently contrary analysis. It is true that courts defer to the opinion
of the Executive Branch. The Statement of Interest filed on May 23, 2000, however,
fails to provide any support far its conclusion that the Treaty of Peace aid the War
Claims Act created a remedy that excluded domestic law claims of U.S. nationals.
The Statement of Interest states repeatedly (at 2, 4, 6, 10, 12, 13) that the Peace
Treaty, along with the War Claims Act that provided for distribution of funds ob-
tained by the United States pursuant to the treaty, created an exclusive remedy for
compensation for prisoners of war. But nothing in the Statement of Interest actually
supports this conclusion. First, Congresss desire that claims within the War Claims
Commissions jurisdiction not be adjudicated by courts (Statement of Interest at 6)
by its terms extends only to claims against the funds that the War Claims Commis-
sion was to distribute, i.e., funds obtained for international legal claims. It is per-
fectly consistent with that intent for domestic law claims between nationals of the
two states to survive. Second, contrary to the Statement of Interest (at 10), the plain
meaning of Article 14(b) does not support the argument that domestic law claims
are, extinguished The plain meaning of waive is to the contrary, See paragraph
12, supra. Third, the discussion of the federal preemption doctrine (at 1113) relies
upon the treaty interpretation of Article 14(b) that domestic law claims are extin-
guished, but does nothing to support that underlying premise. All of the authorities
cited in the Statement of Interest are fully consistent with the natural reading of
Article 14(b), that the Allied Powers waived their international law claims. The
Statement of Interest fails entirely to deal with the accepted distinction between
international law claims and domestic law claims. The Statement of Interest fails
to explain how language of waiver somehow means extinguishment. It fails to ex-
plain either the Stikker-Yoshida correspondence, or the Japanese Government views
described in the Ito article. Accordingly, with respect to Article 14(b), the Statement
of Interest contains no more than repeated governmental ipse dixit that domestic
law claims of U.S. nationals have been excluded by a treaty, a treaty that simply
does not say as much.
It should be added that domestic law claims of the United States government are
also conceivably waived by Article 14(b), since it is possible that the United States
gave up its right to pursue a class of claims in the domestic courts of Japan or the
United States, in addition to waiving its international law claims. But with respect
72
to domestic law claims of U.S. nationals, it is an entirely strained and unnatural
reading of the words the Allied Powers waive to interpret it to mean the Allied
Powers take away or extinguish claims of their nationals in domestic courts
under domestic law. Under no accepted concept are such claimsin contrast with
international law claimstheirs to waive.
PREPARED STATEMENT OF JOSEPH A. VIOLANTE

MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE: On behalf of the more than one
million members of the Disabled American Veterans (DAV) and its Auxiliary, I am
pleased to provide DAVs remarks for the record on the plight of former World War
II American Prisoners of War (POWs) captured in the Pacific, and their struggle for
justice.
The DAV is made up of men and women disabled in our nations defense. The
DAV was founded in 1920 and chartered by Congress in 1932 as the primary advo-
cate for Americas service-connected disabled veterans, their dependents and sur-
vivors. Since its inception, the DAV has been dedicated to one, single purpose: build-
ing better lives for our nations disabled veterans and their families. During the past
80 years, the DAV has never wavered in its commitment to serve our nations serv-
ice-connected disabled veterans, their dependents and survivors.
The DAV has a narrow legislative focus defined by its Congressional charter and
our Constitution and Bylaws. We are charged with advancing the interests of war-
time disabled veterans and their dependents concerning certain federal veterans
benefits and services. These benefits and services have, as part of their eligibility
criteria, the establishment of a service-connected disability as a result of wound, in-
jury, or disease that occurred during active duty.
Our major policy positions are determined by our membership passing certain res-
olutions at our annual National Conventions. These resolutions must be in keeping
with the guidelines of our charter, as well as our Constitution and Bylaws.
In recognition of the fact that former POWs suffered cruel and inhumane treat-
ment and nutritional deprivation at the hands of their captors, which resulted in
long-term adverse health effects, our membership has consistently supported legisla-
tion that would expand POW presumptions.
Although no resolution was submitted for DAV to consider supporting the efforts
of former World War II American POWs in the Pacific in their efforts to seek legal
action against those Japanese companies who used American POWs as slave labor,
the DAV is seriously concerned about our governments position opposing this litiga-
tion. It is inconceivable that our government would take a neutral position with re-
gards to similar issues affecting reimbursement from German companies, and op-
pose claims directed to private Japanese companies for whom former POWs were
forced to work as slaves.
Sadly, our nation has chosen to continue to ignore its commitment to those brave
men and women who have defended the freedoms all Americans, and many citizens
around the world, cherish. It is hard to imagine a group of men and women more
deserving than those former POWs who endured months and years of cruel and in-
humane treatment, brutality, nutritional deprivation, and adverse health effects at
the hands of their captors, especially those captured in the Pacific theater.
The DAV strongly believes that our nation has a sacred obligationa dutyto en-
sure that the defenders of our freedom are adequately cared for, compensated, reha-
bilitated, and returned to gainful civilian employment, whenever possible. In many
cases, it is impossible to erase the physical and mental traumas of war suffered by
those valiant warriors who sacrificed, and gave their all, no questions asked, in de-
fense of freedom.
There is a common bond among veterans, forged by their shared experiences that
have molded their character and their values. Although their lives have been forever
changed, their values have not, and their commitment to this nation remains strong,
even though our government too often reneges on its commitment to them.
In return for sacrificing their lives, their limbs, and mental and physical well-
being, the only thing that veterans have ever asked in return is that our govern-
ment honors its commitment to help them and their families in their hour of need.
This sacred covenant between our nation and its citizen soldiers has been both im-
plied and implicit since our nation was founded.
We must never forget how blessed we are to live in a free society, nor forget the
price that was paid for our freedom, especially by those deprived of all human dig-
nity by their captors. We must, therefore, honor and care for those who distinguish
their lives in defense of freedomwhatever the cost.
73
The only thing that these former World War II American POWs of the Pacific
Theater ask is for the right to receive just and fair compensation from private Japa-
nese companies who profited from their slave labor, without interference from our
government. At the very least, our government should remain neutral and not op-
pose their legal actionthey deserve nothing less.
Mr. Chairman, this completes my testimony. Thank you for allowing the DAV the
opportunity to discuss its concerns about our governments opposition to the legal
claims of former World War II American POWs against private Japanese companies.
AMERICAN DEFENDERS OF BATAAN & CORREGIDOR, INC.,

Wellsburg, WV, June 20, 2000.
Senator ORRIN HATCH,
Dirksen Senate Office Building, Washington, DC.
DEAR SENATOR HATCH: We were squeezed into the filthy allotted space in the
bowels of the hell ships, and were locked in for safe-keeping. Maybe there was still
some physical strength left for work or perhaps they would serve as barter should
the Japanese militarists need them for such. Devoid of any comforts, without food
or water and not even the courtesy to mark the ship as carrying prisoners of war,
we sailed through the battle infested waters toward Japan. We saw the smack of
a torpedo or bomb as it hit the ship, we saw the rushing water as it entered the
hold and we felt panic that said This is it. There was terror written in deep gaunt
lines on the faces of the men. Men that were then to the breaking point. We arrived
in Japan and were assigned to quarters which were unfit for human living, starved,
beaten and then assigned to Japanese industrialists as slave labor to work in plants
to manufacture and handle war materials which would be used against our own
country men for almost three and one half years. thousands died from starvation
and severe mistreatment by the Japanese military. Today we suffer immensely from
the residual effects of our prisoner of war life. It took 36 years for our government
(PL 9737) to recognize the physical and mental disabilities of this group of veter-
ans.
Those few who came home continually looked to their government to seek some
compensation from the Japanese government and industrialists who used them as
slave labor during World War II. As of this date they have found none. What we
did receive is, a peace treaty with Japan, that many of us claim denies us redress
for violation of our basic human rights. With the help of a few civic minded attor-
neys and other individuals in various parts of the United States, the prisoners of
war community has initiated a drive for justice against those Japanese industri-
alists that used us as a slave labor in plants that produced war goods which were
used against those gallant and brave armed forces who were island hopping in the
South Pacific to free them from the tyrannical hands of the Japanese government.
A number of law suits have recently been filed in the state of California on behalf
of these former prisoners of war. These complaints were filed against those Japa-
nese firms that benefited from their slave labor during World War II. Currently,
there are almost eighty attorneys assisting in the litigation against the Japanese
industrialists.
Hopes were high that perhaps justice might now prevail for this group. However,
the prisoner of war community has recently been informed that the United States
Department Of Justice, pursuant to a courts order requesting such, has issued an
opinion that supports the Peace Treaty with Japan dated September 8, 1951. The
opinion states that a claim relying on state law is considered one arising under
federal law and may be removed to federal court, The opinion states that the Peace
Treaty along with the War Claims Act of 1948 preempts state law claims as shown
in Raymond Heimbuch et al against Ishihara Sangyo Kaisha Ltd. for remanding the
litigation to a state court.
This action by the Justice Department is in direct contradiction to a letter by
Judge John W. Bissell that requested the department to appear as amicus curiae
(commonly known as friend of the court) in two slave labor claims on behalf of per-
sons forced to work in German factories during World War II. The Civil Division
of the Department of Justice respectfully declined the request of Judge Bissell to
become involved in this particular litigation.
It is very apparent that the Justice Department made a determined decision only
six months ago not to interfere with claims pending on behalf of Holocaust slave
tabor victims, whereas in the Raymond Heimbuch et al litigation, they have taken
a position which is detrimental to such claims on behalf of slave labor victims of
the Japanese industrialists. These former prisoners of war are bewildered that the
Department Of Justice chose to take such a position which interferes with the rights
74
of a private citizens to bring claims against private companies. These plaintiffs are
particularly concerned that the effect of this opinion could nullify the action of the
California legislature in seeking to open up State courts for American POWs pursu-
ing fair compensation for slave labor performed during World War II.
Why are former prisoners of war who were forced to perform slave labor for the
Japanese companies being treated differently from persons who performed as slave
labor for German companies during World War II? Why did the Department of Jus-
tice publicly state a position that is adverse to the former prisoners of war who seek
redress from private Japanese companies? It should be noted that many of the Holo-
caust slave labor victims and their representatives have been actively involved in
supporting legislation against Japanese companies and are doing everything they
can to right the injustices which occurred in the Pacific during World War II. We
would appreciate your help on this matter.
Respectfully yours,
EDWARD JACKFERT,
Past National Commander, American Defenders Of Bataan & Corregidor.
THE AMERICAN CENTER FOR CIVIL JUSTICE,

Brooklyn, NY, June 10, 2000.
STUART EIZENSTAT,
Deputy Secretary of the U.S. Treasury,
U.S. Treasury Department, Washington, DC.
DEAR MR. EIZENSTAT: The American Center for Civil Justice, an advocacy group,
has been responsible for the public awareness that has spawned the more than thir-
ty present lawsuits against Japanese Corporations for the enslavement of American
ex-POWs during World War II.
The Center provided the initial and essential historical and legal research to en-
able these claims to move forward. The Center has also corresponded with some of
the Japanese Corporations that maintain headquarters in the United States.
The Centers primary goal and commitment has been to establish a quick and
early closure to this issue of compensation that has been ignored for half a century.
The Center is presently proposing a direct settlement between the companies and
the claimants, that will be fair to the victims without harming the corporations in-
volved.
The Center believes this approach is in the best interest of all parties and in the
national interest of both Countries.
The Center represents the majority of living American claimants and has the abil-
ity to reach out to all American victims within a reasonable period of time.
The Center has no financial interest in this claim or settlement and has made
every effort in preventing this issue from becoming a new found source of revenue
for the legal industry,
This proposal and your response to it are destined to become part of the history
of this affair, and such intervention would seem to be within your official capacity.
I would be available to meet with you at the earliest possible opportunity.
Sincerely,
MICHAEL ENGELBERG, MD.

Mr. HIROAKI YANO,
President, Mitsubishi International Corp., NY, NY.
DEAR MR. YANO: The American Center for Civil Justice, an advocacy group, is au-
thorized to represent 600 American ex-POWs of alleged Japanese slave labor, the
largest group seeking redress for enslavement.
Since our last correspondence in December, approximately thirty new lawsuits
have been filed against Japanese industries and the United States legal system is
being used as a tool to pursue these claims.
The Center which was the original advocate of this issue and was responsible for
making it public, proposes a swift and direct settlement, which will remove this
claim from the courts. By immediately addressing these claims, this issue, that will
affect American and Japanese relations, and may affect the future of your company,
would be resolved in a sensible and just manner.
The Center will be able to reach out to all American victims within a reasonable
period of time.
75
In continuing to defend these mushrooming claims in U.S. Courts, your legal and
public relations cost could possibly exceed a total settlement cost while not bringing
closure to either plaintiff or defendant.
This is a serious offer of good faith on behalf of the victims and the Center will
have no financial interest in this claim or settlement.
The Center believes this approach is in the best interest of all the concerned par-
ties and is in the national interest of both of our countries. While it is unfortunate
that the Centers December correspondence and its recommendations was not acted
upon, no action on your part will initiate further law suits which will elevate the
expenses and public profile of this unfortunate matter.
Your response to this offer, which is being made on behalf of the elderly and frail
American surviving victims, will for posterity, reflect your attitude and approach to-
wards correcting an historical injustice.
If you would like to explore the framework and details of this recommendation,
I will be available to meet with you or your representative at the earliest possible
opportunity.
Sincerely,

Mr. HIROSHI NODA,
Kawasaki Heavy Industries (U.S.A.), Inc., NY, NY.
DEAR MR. NODA: The American Center for Civil Justice, an advocacy group, is au-
thorized to represent 600 American ex-POWs of alleged Japanese slave labor, the
largest group seeking redress for enslavement.
Since our last correspondence in December, approximately thirty new lawsuits
have been filed against Japanese industries and the United States legal system is
being used as a tool to pursue these claims.
The Center which was the original advocate of this issue and was responsible for
making it public, proposes a swift and direct settlement, which will remove this
claim from the courts. By immediately addressing these claims, this issue, that will
affect American and Japanese relations, and may affect the future of your company,
would be resolved in a sensible and just manner.
The Center will be able to reach out to all American victims within a reasonable
period of time.
In continuing to defend these mushrooming claims in U.S. Courts, your legal and
public relations cost could possibly exceed a total settlement cost while not bringing
closure to either plaintiff or defendant.
This is a serious offer of good faith on behalf of the victims and the Center will
have no financial interest in this claim or settlement.
The Center believes this approach is in the best interest of all the concerned par-
ties and is in the national interest of both of our countries. While it is unfortunate
that the Centers December correspondence and its recommendations was not acted
upon, no action on your part will initiate further law suits which will elevate the
expenses and public profile of this unfortunate matter.
Your response to this offer, which is being made on behalf of the elderly and frail
American surviving victims, will for posterity, reflect your attitude and approach to-
wards correcting an historical injustice.
If you would like to explore the framework and details of this recommendation,
I will be available to meet with you or your representative at the earliest possible
opportunity.
Sincerely,
ASSEMBLY CALIFORNIA LEGISLATURE,

Sacramento, CA, June 30, 2000.
RE: Senate Hearing on Former U.S. World War II POWs: A Struggle for Justice
Hon. ORRIN HATCH,
Chair, Honorable Members of the Senate Judiciary Committee,
U.S. Senate Committee on the Judiciary, Dirksen Senate Office Building, Washing-
ton, DC.
DEAR CHAIR AND JUDICIARY COMMITTEE MEMBERS: I write to you as a co-author
of California State Senator Tom Haydens legislation (Senate Bill 1245 of 1999)
76
which grants former prisoners of war a basis to pursue claims against Japanese
companies doing business in California. I am also the author of Assembly Joint Res-
olution 27 of 1999, which calls for Japan to formally apologize and pay reparations
for war crimes.
In 1670, Benedict Spinoza wrote in his Theological-Political Treatise:
Peace is not an absence of war, it is a virtue, a state of mind, a disposi-
tion for benevolence, confidence, justice.
For former slave laborers, the war is over, but there is no peace. In an effort to
bring closure to a heroic community of Americans, the State of California has grant-
ed former prisoners of war who were forced to work as slave laborers a right to seek
compensation. I urge you to do all within your power to allow these Americans to
have their day in court.
The Justice Department has interpreted the San Francisco Peace Treaty of 1951
as barring these claims. The Justice Department opinion passively restates the posi-
tion of the State Department, but is void of any apparent common sense of justice.
It fails to recognize that a true peace is more than the absence of war.
While I value the work of the Justice Department, I recall that the Justice De-
partment successfully opposed the initial claims of Japanese-Americans seeking re-
dress for their internment. In this instance, as in the past, there are persuasive
legal arguments contrary to the position of the State Department. These arguments
must be aired in a court of law.
This is truly a test of our democracy. I urge you and every member of Congress
assist these valiant Americans by securing their day in courtthey deserve nothing
less. To deny them a day in court is, at this point, to deny them justice and their
only remaining opportunity for true peace.
Sincerely,
MICHAEL M. HONDA,
California State Legislature, 23rd Assembly District.
THE CENTER FOR INTERNEE RIGHTS, INC.,

Miami Beach, FL, June 22, 2000.
Senate Judiciary Committee, U.S. Senate,
Washington, DC.
DEAR CHAIRMAN HATCH, On behalf of our fifty thousand members representing
former POWs and civilian internees of Japan in World War II let me thank you for
taking an interest in the plight of these poor souls who were so brutalized by Japan
in WWII.
Frankly, we are shocked and disappointed on the recent decision issued by the
Department of Justice relating to American POWs used by private Japanese compa-
nies as slave labor in WWII. California took the initiative and did the right thing
by passing laws to allow slave laborers to sue the companies that used them ille-
gally and who never paid them. The issue is not a sovereign nation to sovereign na-
tion issue but one of an individual citizen suing a private company. Why people
keep bringing up the San Francisco Peace Treaty as blocking the ability of these
lawsuits to progress is beyond me.
Frankly, Senator Hatch, the San Francisco Peace Treaty ought to be looked at
very carefully for it specifically did not end the issue of compensation for the victims
of Japan. The history of the Treaty is certainly flawed with ominous political reck-
oning and the victims were mostly ignored by their own Government. Germany on
the other hand has stepped forward and faced their transgressions in WWII in a
just and honorable way. The US Government has strongly supported the effort both
private and governmental in settling compensation issues for those who suffered
under the Nazi German Regime. Why then is there a dual standard when it comes
to the same type of victims who suffered under the Japanese?
I can tell you this, having been a former internee of the Japanese in WWII, those
captured by Japan suffered unspeakable and inhumane treatment by Japan. The
US on the other hand treated the Japanese, Japanese-Americans, Italians and Ger-
mans who were interned in the United States during the war with kindness, respect
and far beyond the parameters of the Geneva and Hague Convention. That is the
American way and we can be proud that we treated enemies at time of war in such
a benevolent fashion.
The Japanese Government will continue to hide behind the San Francisco Peace
Treaty until the United States Government faces the fact that they themselves were
77
involved in an unjust Treaty that fully overlooked the plight of the American citi-
zens captured and interned by Japan.
It is our hope, Senator Hatch, that your Hearings will expose the US Govern-
ments calloused and uncaring attitude toward the American citizens who sacrificed
all in the pursuit of freedom and democracy that we are privileged to enjoy today.
In the spirit of our great nation your Committee can resolve the situation. it is time
to do the right thing.
Respectfully,
GILBERT M. HAIR (SANTO TOMAS INTERNEE),
EXECUTIVE DIRECTOR,
Life MemberADBC, AXPOW, DAV, AMERICAN LEGION, CORMV.
[EDITORS NOTE: The attachment of an article from the Veterans Journal, October
1999 Issue, Volume 2, Number 10, Massacres and Atrocities of World War II, is
retained in Committee files.]
78
79
OFFICE OF SELECTMAN,
STATE OF CONNECTICUT,
Stafford Springs, CT, June 20, 2000.
Chairman, Senate Judiciary Committee, Washington, DC.
DEAR MR. HATCH, A resident of our community, Darrell Stark was captured in
the Philippines by the Japanese as a young man at the onset of World War II.
While most of the men in his unit died either while being transported or in cap-
tivity, Mr. Stark survived. He was transferred to Japan and forced to work as a
slave laborer for three years.
He feels strongly that like his counterparts who were forced to do slave labor for
the Germans, that he should be able to bring Civil Actions against the Japanese
companies that profited from his labor in the United States Courts.
We understand that people, who were enslaved in the European Theater, are per-
mitted to bring suit, but those people used in this fashion in Asia are not. The con-
cept that some former service men and women can bring suit and others cant is
difficult to understand.
We understand that vital social and governmental issues may be involved with
their decision but the overriding human consideration should be that federal legisla-
tion should be enacted to permit our former slave laborers to be compensated for
their suffering and their work.
Your swift attention to this matter will be appreciated not only by Darrell Stark
but also by the thousands of other former service men and women who suffered the
same fate.
Very truly yours,
JOHN E. JULIAN,
First Selectman.
THE AMERICAN LEGION,

Washington, DC, June 27, 2000.
Hon. ORRIN HATCH,
Chairman Senate Judiciary Committee,
DEAR CHAIRMAN HATCH: On behalf of the 2.8 million members of The American
Legion, I want to express our sincere thanks to you for scheduling the Judiciary
Committee hearing on June 28 on the subject of compensation for Bataan POWs.
We welcome and appreciate your leadership on this issue and trust that the hearing
will help bring closure and justice to the survivors of Bataan who have been waiting
for this for over fifty years.
Bataan survivor compensation has been a concern of The American Legion for
many years. We have two longstanding resolutions that speak to this specific issue.
Our steadfast position remains that the Japanese government must:
(1) Render an official and unequivocal apology for the pain, suffering and death
inflicted on American POWs and
(2) Pay $20,000 to the surviving service members who were involved in the Ba-
taan Death March and to the Families of the non-surviving service members.
We feel that this is the very least the Japanese can do to right one of the most egre-
gious wrongs of the 20th Century.
As you are well aware, the American prisoners held by the Japanese were sub-
jected to conditions and deliberate abuse that were beyond belief. Upwards of 10,000
American prisoners died as a result of Japanese brutality during their occupation
of the Philippines. Seeing that Germany has apologized for its injustices during
World War II and reparations have been paid to Japanese-Americans who were
forced into internment camps, positive steps from Japan are long past due.
The American Legion was certainly pleased to see the recent introduction of H.
Con. Res. 357 that expresses the sense of Congress concerning war crimes commit-
ted by the Japanese military during World War II. This resolution closely mirrors
American Legion positions and calls for both an apology and the payment of repara-
tions to surviving POWs, by the Japanese. We strongly support H. Con. Res. 357
and urge the U.S. Government to exact pressure on the Japanese government and
commercial interests to make an apology and make payment of reparations a re-
ality.
We are also aware of section 655 of S. 2549, the National Defense Authorization
Act for fiscal year 2001, which if enacted will pay a gratuity through the Secretary
80
of Veterans Affairs to eligible veterans or their surviving spouses. This provision
would pay $20,000 to veterans of Bataan or Corregidor who were POWs forced to
preform slave labor in Japan during WWII. The American Legion would support
this proposal only after all attempts diplomatic, administrative and Congressional
in nature for payment by the Japanese government or Japanese commercial inter-
ests have been exhausted.
The American Legion applauds the Committees actions to expose and address the
heinous activities of the Japanese during World War II. While Japan can never fully
atone for these actions, the Japanese most assuredly should take steps to apologize
and provide a sense of justice to the Bataan survivors and their families.
Sincerely,
JOHN F. SOMMER, JR.,
Executive Director.
AMVETS,
Lanham, MD, June 26, 2000.
The Hon. ORRIN HATCH,
U.S. Senate Washington, DC.
DEAR SENATOR HATCH: As AMVETS National Commander, I am pleased to sup-
port the efforts of the Senate Judiciary Committee to examine the plight of the U.S.
POWs and civilian internees who were captured, interned and brutalized by Japan
during WWII.
It is important that we as a nation investigate the service of American POWs
forced to endure long hours of hard labor for Japanese businesses during their cap-
ture and recognize and compensate those brave veterans. This issue is of great con-
cern to the AMVETS membership. This August, at our 56th National Convention,
delegates will consider an organizational resolution that requires AMVETS to sup-
port all efforts to investigate and resolve the claims of slave labor by the Japanese
during WWII.
Thank you for the opportunity to express our support for this important issue.
AMVETS is proud of your efforts in helping to secure the benefits of Americas vet-
erans.
Yours in loyalty and service,
CHARLES L. TAYLOR,
AMVETS National Commander.
HOUSE OF REPRESENTATIVES,
Washington, DC, June 23, 2000.
The Hon. ORRIN G. HATCH,
Chairman, Senate Judiciary Committee, Washington, DC.
DEAR MR. CHAIRMAN: It has come to my attention that you are considering hold-
ing hearings on the ability of American Prisoners of War (POWs) held by the Japa-
nese during WWII to sue, in federal court, for the injuries, back wages, and dam-
ages resulting from the POWs imprisonment and forced labor. I write to express
my strong support of your holding hearings to look into this matter.
Several thousand American soldiers were held as POWs and performed slave
labor which, in large part, contributed to the wealth and success of many private
Japanese corporations. These POWs endured unspeakable horrors, were beaten
often, and poorly fed while working in mills 10 to 15 hours per day. We, in the Fed-
eral Government, have an obligation to ensure that the soldiers, who were impris-
oned as they fought to protect and preserve our freedom and democracy, receive the
just compensation to which they are entitled.
As you know, similar cases involving Nazi Germany have arisen. However, there
seem to be inconsistencies in how the Department of Justice has responded to cer-
tain courts which have sought the opinion of the United States regarding cases in-
volving POWs held by Japan and Germany. As such, I believe that a hearing is ap-
propriate and the Senate is best suited to conduct hearings on how best to resolve
this situation as any action on this issue would involve or be impacted by the trea-
ties that ended WWII.
You may also know that the State of Rhode Island is currently considering legisla-
tion that would allow former POWs and their kin to sue, in Superior court, Japa-
nese corporations that profited greatly from the slave labor of these prisoners. That
legislation unanimously passed the Rhode Island State Senate and is expected to
pass the House.
81
Thank you for your attention to this matter and please feel free to contact me if
you have any questions or if I can provide any additional information.
Sincerely,
BOB WEYGAND,
Member of Congress.
MILITARY ORDER OF THE PURPLE HEART,

Springfield, VA, June 23, 2000.
The Hon. ORRIN G. HATCH,
Chairman, Committee on the Judiciary, U.S. Senate,
SENATOR HATCH: The Military Order of the Purple Heart, a Congressionally char-
tered organization dedicated to protecting and advancing the rights and interests of
our Nations Combat Wounded Veterans, supports the request for equitable and fair
treatment made by our former Japanese-held World War II Prisoners of War. Spe-
cifically, these POWs are requesting that the U.S. Government support, by all ap-
propriate means, their claims for redress from private Japanese companies that
used them as slave labor during the course of their imprisonment.
The Military Order of the Purple Heart. requests that the Senate Committee on
the Judiciary investigate and explore the historical, legal, and practical issues in-
volved with the claims for equitable compensatory action made by these gallant vet-
erans and former POWs. We would especially ask that the following specific con-
cerns of these veterans be addressed:
That certain key language in the San Francisco Peace Treaty of 8 September
1951 is not operative in light of Article 26, the Most Favored Nation Clause,
of that treaty.
That the language of Article 14(b) of the Treaty does not encompass current
U.S. POW claims.
That the Treaty does not operate to waive national versus national claims.
That the U.S. Justice Departments Statement of interest of the United States
on the Plaintiffs Motion to Remand in Heimbuch v. Ishihara & Co., Ltd., Case
No. COO0064 WHA, (N.D. Cal. Mar. 23, 2000) (J. Alsup) dated 23 May 2000
is inequitable in light of the U.S. position taken on litigation (Gross v. Volks-
wagen and Rosenfeld v. Volkswagen) involving German Holocaust victims.
I thank you in advance for your interest and consideration of this request.
Yours in patriotism,
FRANK G. WICKERSHAM, III,
National Legislative Director, MOPH.

Senate Hearing, 106TH Congress - Former U.S. World War Ii Pow's: A Struggle For Justice

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Senate Hearing, 106TH Congress - Former U.S. World War Ii Pow's: A Struggle For Justice

Încărcat de

Drepturi de autor:

Formate disponibile

S. HRG.

FORMER U.S. WORLD WAR II POWS:

COMMITTEE ON THE JUDICIARY

DETERMINING WHETHER THOSE WHO PROFITED FROM THE FORCED

JUNE 28, 2000

Serial No. J10694

Printed for the use of the Committee on the Judiciary

STATEMENTS OF COMMITTEE MEMBERS

CHRONOLOGICAL LIST OF WITNESSES

ALPHABETICAL LIST AND MATERIALS SUBMITTED

QUESTIONS AND ANSWERS

ADDITIONAL SUBMISSIONS FOR THE RECORD

WEDNESDAY, JUNE 28, 2000

the innumerable displays of compassion and love for your fellow

a duty to ensure the thoroughness of the work the Justice Depart-

diers captured and imprisoned by Japan during World War II

Now, I know that the chairman is also concerned that, in con-

or its nationals to seek further monetary recovery against Japanese

vored-nation-type scheme. John Foster Dulles, who personally

nomically for Japan was the question of reparations, particularly

The CHAIRMAN. Well, I dont know of a case in point that says

were treated so badly even though there may be a dispute about

Senator SESSIONS. Mr. Chairman, thank you for having this

The CHAIRMAN. Yes, that is what he is saying.

The CHAIRMAN. Thank you.

reached Guam Navy intelligence officers took us one on one into

health problems directly attributed to the time I spent as a slave

taan surrendered. We then found ourselves prisoners of war. I

recently is being denied by our own Government. Those of us who

STATEMENT OF EDWARD JACKFERT

My name is Edward Jackfert. I recently completed my second

STATEMENT OF HAROLD G. MAIER

Mr. MAIER. I guess I ought to say who I am. I am a professor

I am Harold G. Maier, Professor of Law at Vanderbilt University, Nashville, Ten-

Professor Maier, we do have a number of legal questions we

QUESTIONS AND ANSWERS

RESPONSES OF THE DEPARTMENT OF JUSTICE TO QUESTIONS FROM SENATOR HATCH

RESPONSES OF RONALD J. BETTAUER TO QUESTIONS FROM SENATOR HATCH

ADDITIONAL SUBMISSIONS FOR THE RECORD

Berlin, Germany, June 26, 2000.

TEXT OF E-MAIL MESSAGE TO SENATOR HATCH FROM RABBI ABRAHAM COOPER OF

PREPARED STATEMENT OF BRUCE R. HARDER, DIRECTOR, NATIONAL SECURITY AND

PREPARED STATEMENT OF LINDA G. HOLMES

AMERICANS IN CAPTIVITY: AN OVERVIEW OF THE PACIFIC WAR, 194145

PREPARED STATEMENT OF MICHAEL D. RAMSEY

PREPARED STATEMENT OF PAUL W. REUTER

PREPARED STATEMENT OF JOHN M. ROGERS

PREPARED STATEMENT OF JOSEPH A. VIOLANTE

AMERICAN DEFENDERS OF BATAAN & CORREGIDOR, INC.,

THE AMERICAN CENTER FOR CIVIL JUSTICE,

THE AMERICAN CENTER FOR CIVIL JUSTICE,

THE AMERICAN CENTER FOR CIVIL JUSTICE,

ASSEMBLY CALIFORNIA LEGISLATURE,

THE CENTER FOR INTERNEE RIGHTS, INC.,

THE AMERICAN LEGION,

MILITARY ORDER OF THE PURPLE HEART,

S-ar putea să vă placă și